UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

LIND, KRAUSS, and PENLAND

Appellate Military Judges

AT,

Petitioner

v.

Colonel JEFFERY D. LIPPERT, U.S. Army, Military Judge,

Respondent

and

Staff Sergeant ANTHONY POWELL

U.S. Army,

Real Party in Interest

ARMY MISC 20150387

11 June 2015

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SUMMARY DISPOSITION AND ACTION ON PETITION FOR

EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS

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Per Curiam:

The real party in interest is charged with two specifications of abusive sexual 

contact, one specification of sodomy, and three specifications of assault 

consummated by a battery in violation of Articles 120, 125, and 128, Uniform Code 

of Military Justice, 10 U.S.C. §§ 920, 925, 928 (2012 & Supp. I 2014).

Petitioner, through special victims’ counsel, seeks extraordinary relief in the 

nature of a writ of mandamus vacating the military judge’s order that petitioner’s 

confidential records of communication with a victim advocate be produced for in 

camera review pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid.] 514. 

Petitioner also requests this court grant her motion for oral argument on this issue 

and stay the court-martial proceedings pending our decision on the matter. We 

conclude that issuance of the requested writ is inappropriate and unnecessary under 

the circumstances and, therefore, we need not grant oral argument or issue a stay.

Petitioner is, of course, correct that communications by a victim to a victim 

advocate, acting in that capacity, are confidential if the communications were not

intended to be disclosed to a third person. Mil. R. Evid. 514(b)(3). She here 

complains that the judge erred by declaring her communications to the victim 

advocate as not confidential because she expressed her intent to make an unrestricted 
POWELL—ARMY MISC 20150387

2

report of sexual assault. While review of Army Regulation 600-20 on the subject of 

unrestricted reporting suggests that the details of the reported assault communicated 

to a victim advocate in a case of an unrestricted report would not be privileged under 

Mil. R. Evid. 514, the evidence in this case adequately establishes that petitioner’s 

intent to disclose was limited to the mere allegations that a sexual assault was 

perpetrated and her identity as victim. However one might interpret the pertinent 

regulations, it is the victim who defines the scope of information to be d isclosed to 

third persons under Mil. R. Evid. 514. Therefore, anything in the judge’s order that 

might be interpreted otherwise would be incorrect. 1

Petitioner further complains that the judge erred by failing to enforce the 

threshold requirements for the production of records for the purpose of in camera

review under Mil. R. Evid. 513 to this situation under Mil. R. Evid. 514. See United 

States v. Klemick, 65 M.J. 576, 580 (N.M. Ct. Crim. App. 2006). However, whether 

or not the Klemick threshold requirements for Mil. R. Evid. 513 apply to matters 

under Mil. R. Evid. 514, the accused here adequately demonstrated a reasonable 

likelihood that petitioner’s communications to the victim advocate about the very 

allegations that serve as the basis for the charges against him include evidence 

admissible under Mil. R. Evid. 514(d)(6) that may not otherwise be discovered. 2

See id. (“This standard is not high, because we know that the moving party will 

often be unable to determine the specific information contained in [the requested] 

records.”). Under these circumstances, and in light of the lesser burden of 

production in any such matter, we find the judge did not abuse his discretion by 

ordering the production of the records in question for in camera review in 

accordance with Mil. R. Evid. 514(d)(6) and (e).3

 

1

The judge’s rulings are ultimately confusing in that he seems to declare all of the 

Sexual Harassment/Assault Response and Prevention (SHARP) records to be non -

confidential and unprotected by Mil. R. Evid. 514 yet, nevertheless, orders their in 

camera review pursuant to Mil. R. Evid. 514.

 

2 We reject petitioner’s arguments that the requested information cannot be 

constitutionally required as a matter of law at this stage of the proceedings. See Mil. 

R. Evid. 514(d)(6). For example, the requirement that Brady v. Maryland, 373 U.S. 

83 (1963), material be disclosed is certainly applicable. See United States v. 

Williams, 50 M.J. 436, 440-41 (C.A.A.F. 1999).

3

The rule provides that the military judge may examine the evidence or a proffer 

thereof in camera, if such examination is necessary to rule on the motion to compel 

discovery of the records. Mil. R. Evid. 514(e)(3).
POWELL—ARMY MISC 20150387

3

CONCLUSION

The Petition for Extraordinary Relief in the Nature of a Writ of Mandamus, 

the Motion for Oral Argument, and the Application for a Stay of the Proceedings are

DENIED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: