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The Supreme Court declined Monday to hear the appeal of a former West Point cadet who said she was raped at the academy, but Justice Clarence Thomas said the court should have taken the case to correct decades of injustices.
The woman, identified in court papers only as Jane Doe, sued two senior officers who were West Point administrators, arguing that the U.S. Military Academy's sexual assault policies were inadequate, failing to protect students from sexual violence. She said a fellow cadet raped her when they went walking late one night in 2010 during her second year at West Point.
But lower courts threw her case out, citing a 1950 Supreme Court decision that said military personnel cannot sue for injuries "incident to" their military service, even though the federal law specifying when the federal government can be sued carves out injury claims arising out of "combat activities" in wartime.
Thomas said Monday that the 71-year-old case, known as Feres v United States, was wrongly decided. Jane Doe "could have brought these same claims had she been a civilian contractor employed by West Point instead of a student."
Because of the earlier decision, "if two Pentagon employees, one civilian and one a service member, are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claims on the merits," he said.
During the seven decades since the Feres case was decided, other members of the court have criticized it, including Antonin Scalia, Ruth Bader Ginsburg and John Paul Stevens.
A group of law professors, including Laurence Tribe at Harvard and Steve Vladeck at the University of Texas at Austin, had urged the court to take the latest case.
"At the time of her rape, Ms. Doe was not a soldier engaged in combat or on base; she was, in fact, not yet even obliged to enter into military service," they said. "Nor was Ms. Doe doing anything characteristically 'military.' The only thing connecting Ms. Doe’s rape to military service was her enrollment at West Point. Yet under Feres, that alone was enough to make her rape incident to military service."