Military sexual assault survivors battle the Feres Doctrine: Wilson
The Feres Doctrine of 1950 is the legal doctrine which, for more than 70 years, has denied members of the armed forces who are on active duty the right to sue the federal government under the Federal Tort Claims Act.
The Feres Doctrine has been used to deny civil lawsuits because, “military personnel should not be able to sue for injuries suffered incident to service.”
The National Defense Authorization Act for Fiscal Year 2020 resulted in the first crack in the Feres Doctrine because it allows victims of “medical malpractice of a Defense Health care provider” to sue for civil damages.
Active-duty military victims of sexual assault could not sue for damages in civil court due to the doctrine, but thanks to the Ninth Circuit Court of Appeals in California, that may be about to change.
The Appeals Court ruled that, “the Feres Doctrine does not bar a retired Army colonel from suing a former Air Force general over her allegations of sexual assault.” It should be noted the Air Force did not file charges or discipline the general.
“Incident of service” means bluntly that sexual assault is an expectation one deals with when serving their country.
The “incident to service” cited by the government in past cases cannot be found in Federal Statue and the best legal scholars have tried to determine why it was made part of the Feres Doctrine.
The three judges of the Ninth Circuit Appeals Court stated in their ruling, “they cannot fathom how the alleged sexual assault in this case could ever be considered an activity incident to service.” The ruling went on to state that the plaintiff had the right to sue because, “the alleged sexual assault could not conceivably serve any military purpose.”
The day after this historic ruling, the family of Spec. Vanessa Guillen filed a $35 million lawsuit in civil court. Spec. Guillen was murdered on duty at Ft. Hood, Texas, in 2020 after being sexually assaulted by a fellow soldier who committed suicide when authorities tried to arrest him.
Justice in the military for sexual assault victims has been thwarted by military judges who have the sole power to change, reduce or dismiss charges, as well as to overturn any verdict that may come in a court martial.
Running the gauntlet of giving formal statements repeatedly, filing charges against the perpetrator and dealing with the hostile environment created when a victim dares to come forward is one of the most overwhelming and brutal experiences a member of the armed forces could ever face.
The presiding judge in a court martial can very well be their commander who naturally does not want such cases to disturb their command. Very often the accused is not placed in confinement prior to trial and is free to continue to disrupt the life of the victim.
The U.S. Army defends this approach stating, “the character of the accused soldier involved and their willingness to follow orders are important factors to be considered.”
Military justice requires no bail. The commanders who make decisions in these cases are not trained lawyers.
Is it any wonder sexual assault is on the rise at military service academies and across the board in all branches of the service?
The assault victims are dealing with a deck fully and firmly stacked against them.
Do you still wonder why so many victims of military sexual assault do not report the crime? Many try to deal with it and suffer the torments of hell.
But we have a glimmer of hope with this decision by the Ninth Circuit Court of Appeals and all members of the military community and veterans should demand an end to “business as usual” in how military sexual assault is handled.
True justice for the survivors of military sexual trauma is long overdue and finally we have a glimmer of light at the end of the tunnel!
— This is the opinion of Patricia Wilson, a veteran and a resident of St. Cloud. Her column appears on the fourth Sunday of the month.
This article originally appeared on St. Cloud Times: Military sexual assault survivors battle the Feres Doctrine: Wilson
