United States v. Rivera

26 M.J. 638, 1988 CMR LEXIS 366, 1988 WL 52223
CourtU.S. Army Court of Military Review
DecidedMay 19, 1988
DocketACMR 8601090
StatusPublished
Cited by3 cases

This text of 26 M.J. 638 (United States v. Rivera) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rivera, 26 M.J. 638, 1988 CMR LEXIS 366, 1988 WL 52223 (usarmymilrev 1988).

Opinion

OPINION OF THE COURT

CARMICHAEL, Judge:

The appellant was tried by a general court-martial composed of officer members. Pursuant to his pleas, he was convicted of sodomy, adultery, indecent acts with another, conduct unbecoming an officer, and use of an expired Drug Enforcement Agency number. The charge of conduct unbecoming an officer was subsequently dismissed as being multiplicious for findings, and the members were instructed to disregard that charge in arriving at an appropriate sentence. The military judge also instructed the court members that adultery was not separate from the offenses of sodomy and indecent acts for the purpose of determining a sentence. The appellant was sentenced to a dismissal and the convening authority approved the sentence.

These offenses resulted from what started as a therapist-patient relationship between appellant and Mrs. A, the wife of an Army officer. Mrs. A was referred to appellant, a psychiatrist, for therapy after seeking medical help for drug dependency and chronic drug abuse. After approximately one year of therapy sessions, Mrs. A testified that appellant asked her, during one of her scheduled sessions, if she thought she could have sex with him and keep that relationship separate from the therapy. Mrs. A, who was seeing appellant twice weekly as an outpatient, said she did not know whether or not she could make such a separation. Mrs. A’s next therapy session was uneventful. However, when she returned to appellant’s office the following day for scheduled therapy, she gave him two lottery tickets. The appellant then initiated physical contact which culminated in sexual intercourse.

During ensuing office sessions, appellant engaged in a variety of sexual acts with his patient. These included vaginal intercourse, fellatio, cunnilingus, mutual masturbation, and appellant masturbating and ejaculating on Mrs. A. This pattern of sexual activity continued for approximately six months during Mrs. A’s scheduled visits for outpatient therapy in appellant’s office at Walter Reed Army Medical Center (WRAMC). The scheduled “therapy” ended with appellant’s reassignment overseas for one year.

Although the office encounters with Mrs. A ended when appellant was reassigned, he returned to the Washington, D.C., area on at least four occasions while stationed overseas. On each occasion, he contacted Mrs. A and arranged to meet her at a local motel. At these meetings, appellant and [640]*640Mrs. A engaged in sexual activity similar to that which had occurred in appellant’s office at WRAMC. Subsequently, appellant was reassigned to WRAMC-and became Assistant Chief of Outpatient Psychiatric Services. He resumed the same pattern of sexual activity with Mrs. A that had been established before his overseas assignment. She was scheduled for therapy, came to appellant’s office at WRAMC, and, while there, engaged in various sex acts with him. These “scheduled” sex-therapy sessions continued until Mrs. A informed appellant that her husband had found her diaries detailing her sexual involvement with appellant.

During the sentencing phase of the trial, Mrs. A testified that appellant had saved her life by freeing her from her addiction to the pain-killer, “Darvon.” Mrs. A further testified that the appellant had become “so important ... as far as keeping [her] off those pills that were killing [her].” She was frightened that he might become angry and stop seeing her. Consequently, she “guessed” she would have done anything to ensure that appellant would continue to treat her.

The appellant’s sexual relationship with Mrs. A lasted for approximately twenty-eight months. Having initially helped Mrs. A during the first year of therapy, appellant, after becoming involved with her sexually, prescribed a drug containing codeine to help ease her tension headaches. Mrs. A testified that she found herself becoming dependent on this drug, and continued her sexual involvement with appellant so he would continue prescribing it for her. Some seven months after appellant stopped treating her, she was hospitalized for drug dependency.

The appellant alleges, inter alia, that the military judge erred by denying the defense’s motion to exclude testimony on the “therapist-patient sex syndrome.” We agree but find the error to be harmless under the circumstances of this case.

Because appellant’s conviction was based on provident guilty pleas, this issue centers on the introduction of aggravating factors during the sentencing phase of the trial. Specifically, it focuses on the expert testimony of Dr. Bouhoutsos, a clinical psychologist. Regarding this issue, defense made a motion in limine to prevent Dr. Bouhoutsos from testifying for the prosecution on the merits of the case. During argument of the motion, the defense conceded that some of Dr. Bouhoutsos’ testimony would be relevant for sentencing purposes. The defense did not, however, concede the existence of a therapist-patient sex syndrome. Although the military judge denied the motion, the issue became “moot” to the extent it was directed toward testimony on the merits when appellant subsequently decided to plead guilty to the charges. In denying the motion, the military judge ruled that expert testimony on the therapist-patient sex syndrome was admissible under Mil.R.Evid. 702.1 But he deferred ruling on the defense’s objection that the testimony was further inadmissible under Mil.R.Evid. 403,2 reasoning he [641]*641would have to hear Dr. Bouhoutsos’ testimony to determine its relevancy.

Once appellant’s negotiated pleas were accepted as provident, counsel for both sides marshaled their formidable skills in an effort to have the court members adopt their respective views concerning an appropriate punishment. The trial became a battle of experts — psychiatrists and psychologists — offering opinions on whether Mrs. A was sexually exploited by appellant, or was a calculating seductress who actively sought a sexual relationship with appellant during therapy.

As part of its evidence in aggravation,3 the prosecution called Dr. Bouhoutsos as an expert witness of psychology and the effects of therapist-patient sexual acts. The witness was accepted as an expert in these areas without objection by the defense. She then proceeded to testify, based on her research, as to the harm done to a patient by a “sexualizing therapist.” When she began relating what Mrs. A had told her as the underlying basis for her opinion, the defense objected that Dr. Bouhoutsos was in effect bolstering Mrs. A’s credibility. The military judge, in response to the defense’s objections, instructed the members not to consider Dr. Bouhoutsos’ testimony concerning what Mrs. A told her for the truth of the matters asserted, but only as information from which the witness had reached her conclusions.

In referring to the “therapist-patient sex syndrome,” Dr. Bouhoutsos identified its etiology as nineteen specific symptoms, seventeen of which were manifested by Mrs. A. Examples of these symptoms are ambivalence, guilt, feelings of isolation, sexual confusion, severe depression, and ritualized and repetitive sex. In short, Dr. Bouhoutsos was testifying to the harm suffered by Mrs. A because of her sexual relationship with appellant. To the extent that she testified that Mrs. A exhibited the symptoms of the therapist-patient sex syndrome, she did, as appellant contends, give a degree of “scientific legitimacy” to the prosecution’s theory that Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
26 M.J. 638, 1988 CMR LEXIS 366, 1988 WL 52223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rivera-usarmymilrev-1988.