Reporter Defies Air Force Subpoena

Airman accused of rape wants notes for court-martial defense

Unlike other journalists who have defied subpoenas recently, Miles Moffeit is not protecting a high-level government source or someone accused of a serious crime. He's protecting Leah Kaelin¹, an 18-year-old woman who says she was gang-raped at Sheppard Air Force Base in Texas by four fellow airmen in June 2003.

Moffeit and fellow Denver Post reporter Amy Herdy (both of whom are Dart Ochberg Fellows) wrote about Kaelin in a March 12, 2004, story, "Delays on rape-case evidence bring new scrutiny to military," which describes the attack and its aftermath. After Kaelin reported the assault, in June 2003, she endured intimidation and ridicule from her peers and commanders, and she was forced to accept a discharge from the Air Force. By the time military investigators had finally processed Kaelin's forensic analysis — the results of which appeared to confirm her allegations — eight months had passed.

Earlier this month, according to a Post report, Moffeit's "notes, memoranda, videotapes, audiotapes and any other information and documents" were subpoenaed for the defense of Matthew Monroe, one of the airmen charged in connection with the rape. The Post refused to surrender the notes and filed a motion to quash the subpoena last week. The judge is expected to decide this week whether to quash the subpoena or call for a hearing.

"It's difficult enough for a rape victim to come forward, especially military women who have, essentially, no privacy rights," Moffeit told the Dart Center yesterday. "If the government succeeds in prying open reporters' notebooks, other victims will be too fear-stricken to come forward."

Attorneys for the Post characterized the subpoena as a "blatant fishing expedition" by Monroe's defense. In an affidavit that accompanied the motion to quash the subpoena, Moffeit noted that he "was not an eyewitness to the alleged crime, nor do I possess any physical evidence. On the contrary, I simply interviewed Ms. Kaelin long after any of the underlying events at issue in this case."

In the affidavit, he also explained the care he takes when reporting about rape victims (Moffeit and Herdy produced a lengthy series, "Betrayal in the Ranks," examining how the military handles rape and domestic violence allegations): "Because Ms. Kaelin brought allegations that she was raped, I was especially concerned not to retraumatize her. A principle I abide by in this kind of trauma reporting, and one I strictly followed with Ms. Kaelin, is to fully disclose to women making rape allegations what to expect in print and to allow them to decide what materials they feel comfortable about disclosing to the public."

In a civilian court, a blanket request for all of a reporter's unpublished materials would likely be ruled too broad and would have to be narrowed, said Richard Kielbowicz, who teaches Mass Media Law at the University of Washington. Typically, he said, in order to compel a journalist to hand over unpublished material, the government must show (A) that the reporter is likely to have information relevant to the crime, and (B) that there are no alternative sources for that information (these conditions come from the Branzburg v. Hayes U.S. Supreme Court decision).

Military courts don't always follow civilian court precedents, however. According to the Post report: "This is believed to be one of only a handful of cases in which the military has sought the unpublished materials of a reporter. In most of the cases, the military courts have ruled such materials are protected from disclosure."

The impact of the judge's ruling in this case could reach well beyond Moffeit and Kaelin. With a significant number of reporters embedded with military units in Iraq and elsewhere, Kielbowicz said that one can imagine a situation where military investigators would seek a reporter's notebook or raw video footage to aid in a criminal investigation.

Mental health experts and victim advocates say it can be beneficial for rape survivors to voluntarily share their stories with reporters. "Telling a trauma story is part of recovery," says Dr. Frank Ochberg, a member of the Dart Center executive committee and a psychiatrist who has worked with victims of sexual assault. "So, a victim of rape — the most intimate of assaults — who finds the resolve to tell her story to a reporter, is completing a stage of healing and recovery." These stories can also help others, Ochberg notes, by reducing the stigma and shame associated with rape.

However, Ochberg says, "there is a vast difference between giving a personal account voluntarily, for a purpose, and having an intrusive inquisition after being traumatized." Such intrusions can be harmful to the individual involved, he says, and they can make it less likely that other victims of rape will come forward in the future.