I must say...this reads like a law school exam...so many issues...
To answer the question, is this consent?
I would sure argue that it was (were I defending member 1). That is, if the military is attempting to prosecute member 1 for violation of Art 92 (either dereliction of duty
, or violation of a lawful order), I would argue that member 2 gave consent to allow access.
To understand this argument, you need to step back and look at a broader picture...
Under the law, if member 2 knows they have an STD and have unprotected sex with member 1, that can be a basis for assault. This is true in many states...but it is certainly true under the UCMJ.
So member 2 is potentially liable under military law for this assault.
And what you describe, if member 1 suspects that member 2 has an STD and confronts them...and during that confrontation, member 2 tells member 1 they can check for themselves? That sure sounds like consent to me.
So at this point? I say non issue (for member 1)
The problem, for member 1, is that in telling her lawyer, who it seems has shared with the court, she, arguably, violated member 2's privacy rights.
This is where it gets complex...
I think there is a good argument that the consent granted by member 2 was sufficient to allow member 1 to use this information as she saw fit...but I can also see the argument that even if consent was granted it was not to share with third parties.
That is why I say this is a complex question.
What could happen to member 1? The military could prosecute for violation of Art 92, under a dereliction of duty theory...duty to protect private information from release.
I still believe member 2 has liability for assault.
What will happen to member 1 if this goes to trial? No way to say...particularly not in this forum (I would need to review the entire case file and interview the parties to even begin to try and answer this question)...but I think that member 1 may still be able to invoke the consent given by member 2 and blanket consent...I mean, he gave consent to view...he knew he had the STD...one can argue he was not worried about how this information would later be used.