Harding Court Martial Prosecution Put On Hold

by TChris

The law, like politics, is about competing values. Defendants accused of sexual assault would often like to know what their accusers said to others about the allegations, because accusers sometimes make inconsistent statements that call their credibility into question. Mental health providers, including sexual assault counselors, want to keep those statements private for fear that the possibility of disclosure would discourage victims from seeking counseling or from giving a candid account of the sexual abuse.

The tension between those competing values -- which has caused some jurisdictions to shield statements made to counselors from disclosure -- is evident in the court martial prosecution of Lt. Joseph Harding, who is accused of sexually assaulting Jessica Brakey at the Air Force Academy. Harding's lawyers contend that they need to see the notes maintained by Brakey's counselor to assure that Harding receives a fair trial. Brakey's counselor, however, refuses to turn over her notes.

Military judge Col. David Brash sided with the defense, postponing Harding's trial indefinitely. Whether Brakey actually made statements to her counselor that would help the defense is unknown, but the judge viewed Brakey's credibility as the key issue in the case, strengthening the argument that the notes should be disclosed.

There was a two-year delay between the alleged rape and Brakey's report to academy officials, so no direct physical evidence exists. As a result, Brakey's credibility is integral to the prosecution's case.

Brash's decision favors Harding's constitutional right to confront his accuser and examine all evidence that might be helpful to him above Brakey's expectation and Bier's pledge that their conversations would be private.

Harding still faces a second military prosecution for "indecent assault" involving a different cadet.

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