Interesting CAAF decision yesterday in *Harpole*. http://www.caaflog.com/2018/02/15/opinion-analysis-no-privilege-for-statements-to-a-victim-advocate-made-in-the-presence-of-a-third-party-but-maybe-ineffective-assistance-of-counsel-in-united-states-v-harpole/. Leaving aside the potential IAC (ineffective assistance of counsel) issue (Object! Object! Object! And object again!), CAAF essentially ruled that the “Victim Advocate” privilege is waived where a third party is present who is not directly assisting the “Victim Advocate.” This waiver has always been true but what CAAF clarified is that if a third person is present for example, for “moral support” (which happens), the privilege is waived.
The first lesson here is that a defense attorney’s discovery requests to the prosecution should be asking for a listing of all meetings with “Victim Advocates” and all persons present at those meetings. The prosecution really *should* be providing this already but in the real world they’re not looking for things that might help the accused (like a potential breach of the “Victim Advocate” privilege).
The second lesson is that if you have “drunk” sex and you at all suspect that there will be a sexual assault allegation made against you, you need to think about reporting it first. But I would recommend doing this through a lawyer. Although the UCMJ is ostensibly gender neutral, in reality when a man and a woman have allegedly intoxicated sex, the man will be charged, not the woman. Obviously sexist and ridiculous but this is the world we live in right now. If you report first you will put the government investigators and prosecutors in a bind. They really will not know what to do. However, the real risk is that they attempt to turn the interview where you make the report into a way to trap you. I would suggest making a statement through an attorney and not allowing them to question you. Contact me or another good defense lawyer if you were in a situation where you were intoxicated and you suspect the possibility of a false allegation against you.