[Congressional Record Volume 169, Number 123 (Tuesday, July 18, 2023)]
[Senate]
[Page S3008]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  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.''.
                                 ______