S.Amdt. 834

SA 834. Mrs. GILLIBRAND (for herself and Ms. Warren) submitted an
amendment intended to be proposed by her to the bill S. 2226, to
authorize appropriations for fiscal year 2024 for military activities
of the Department of Defense, for military construction, and for
defense activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other purposes; which
was ordered to lie on the table; as follows:

At the end of subtitle D of title X, add the following:

SEC. 543. MODIFICATION OF RULE 513 OF THE MILITARY RULES OF
EVIDENCE, RELATING TO THE PRIVILEGE AGAINST
DISCLOSURE OF COMMUNICATIONS BETWEEN
PSYCHOTHERAPISTS AND PATIENTS.

Not later than 180 days after the date of the enactment of
this Act, Rule 513 of the Military Rules of Evidence shall be
modified--
(1) to amend subsection (a) of the rule to add ``A patient
furthermore has a privilege to refuse to disclose, and to
prevent any other person from disclosing, records made for
the purpose of diagnosis and treatment of the patient's
mental or emotional condition, including any diagnosis made,
advice given, or treatment provided or prescribed by a
psychotherapist or an assistant to a psychotherapist in a
case arising under the Uniform Code of Military Justice.'';
(2) to add to subsection (b) of the rule a new paragraph
(6) stating, ``This privilege applies to records, including
diagnoses and treatments, regardless of prior disclosure of
those records pursuant to Federal law, state law, or service
regulation. This privilege applies to production for the
purpose of courts-martial under the Uniform Code of Military
Justice and admissibility therein, but shall not
independently prohibit the disclosure of diagnoses,
treatments, or communications the disclosure of which is
required to ensure the safety and security of military
personnel, military dependents, military property, classified
information, or the accomplishment of a military mission.'';
(3) in subsection (d)(2), to strike ``, or in a proceeding
in which one spouse is charged with a crime against a child
of either spouse'';
(4) to strike subsection (d)(3), renumber (d)(4) as (d)(3),
and renumber (d)(5) as (d)(4);
(5) to strike subsection (d)(6) and renumber subparagraph
(d)(7) as (d)(5); and
(6) to amend subsection (e)(2) to add the following
language: ``Prior to ordering the production or admission of
evidence of a patient's records as described in subsection
(a) or communications, the judge must make a ruling that the
party seeking production or admission of such records has
demonstrated: (A) a specific factual basis demonstrating a
reasonable likelihood that the records or communications will
yield evidence admissible under an exception to the
privilege; (B) by a preponderance of the evidence that the
requested information meets one of the enumerated exceptions
to the privilege or is constitutionally required; (C) that
the information sought is not merely cumulative of other
information available; and (D) that the party made reasonable
efforts to obtain the same or substantially similar
information through non-privileged sources.''.
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