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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 34512
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Active duty member who works in hospital is given STF by abother

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Active duty member who works in hospital is given STF by abother active duty member. When confronted, the 2nd member denies it and says "I don't have anything, you can look up whatever you want', thinking the 1st member probably wouldn't really do it. So 1st member looks it up and confirms that member did in fact have std (which he never notified her of and also exposed their unborn child to). The member who accessed record never disclosed it to anyone else except her attorney in the custody case they have (it wouldve come out in the discovery phase of court possibly). 2nd member now files patient complaint against 1st member for accessing his record. What punishment is first member looking at and is his statement about looking up whatever she wanted considered cconsent?
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

How was the 1st member able to access 2nd members record?
Customer: replied 4 years ago.
The first member works in the mtf where the 2nd receives care.
Thank you

I want to make sure I understand...member 2 gave member 1 consent to view the record?
Customer: replied 4 years ago.
Verbal consent during an argument. 2nd member probably said it thinking 1st member never would, since 1st member has never looked in 5 years, but said "you can look up whatever you want, I don't have anything". Regardlless of motivation, or motive, 2nd member did say it to 1st member. Is that statement (albeit saidd during verbal argument) considered consent? 2nd member didn't file complaint until court order for child support was levied upon him. He is attempting to use it as leverage during upcoming custody hearing, and now denying he ever gave consent.
Thank you

I must say...this reads like a law school 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 can argue he was not worried about how this information would later be used.

Customer: replied 4 years ago.
Obviously there are many X factors in this case, but if member 2 is now denying the consent he gave so he can use it against member 1 in the aforementioned custody/support issues, its really just #2's word vs #1 right?
Sure...that is true. But frankly, MANY cases boil down to testimony. He said/she said, he said/he said. Etc.

At the end of the day, the court (either criminal or civil or both) will need to decide who they believe based on testimony. Not fact, it is very common.

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