The U.S. Supreme Court announced this month that it would not review an appeal brought by a female West Point cadet who says the federal government should be liable for injuries she sustained from a sexual assault at the U.S. military academy.
The cadet, identified in court documents as Jane Doe, said she was raped on campus and subjected to constant sexual harassment. She sued the government after the academy failed to adhere to mandatory Defense Department regulations governing the military’s response to sexual assaults. Studies of sexual assault in the military are limited, but one survey of veterans found that 31 percent of lesbian and bisexual former servicemembers indicated they had been sexually assaulted in the military compared to 13 percent of heterosexual women veterans.
In a brief supporting Jane Doe’s appeal, the Modern Military Association of America (formerly known as OutServe) joined several other women’s groups to urge the Supreme Court accept the appeal and overturn a 1950 decision that has barred lawsuits similar to Doe’s.
The Federal Tort Claims Act allows individuals to sue the federal government over certain injuries sustained on federal property or caused by federal employees. But efforts to combat sexual assaults in the military have been running up against a 1950 U.S. Supreme Court ruling –in Feres v. U.S.— that held that members of the military cannot sue for injuries “incident to service.”
In Doe’s case, the military argued that the injuries Doe sustained from being raped on campus were “incident to service.”
The MMAA brief argued that the Feres decision should not be used to excuse government culpability for sexual assault injuries received while attending a military academy. The brief argued that the Feres ruling is giving a “free pass” to sexual assailants at military academies. It noted that sexual minority servicemembers account for even higher numbers of the victims, including male servicemembers who identify as gay or bisexual.
“Specifically, LGBTQ service members (6.3% of women and 3.5% of men) were more likely to indicate experiencing sexual assault than non-LGBTQ service members (3.5% of women and 0.3% of men),” said the article in the journal of Sexual Research Social Policy. “The prevalence rates of sexual assault were estimated at 4.5% for LGBTQ service members compared to 0.8% for non-LGBTQ service members.”
Justice Clarence Thomas was the lone dissent on the court’s refusal to take the appeal. He noted that, had Doe been a civilian contractor visiting the academy campus when she was raped, she could have brought her claims for injuries.
“Feres was wrongly decided; and this case was wrongly decided as a result,” said Thomas in a two-page dissent.
Thomas said he was concerned that the student’s “rape is considered an injury incident to military service.” Acting Solicitor General Elizabeth Prelogar’s brief to the Supreme Court had argued that, as a cadet at West Point, Jane Doe was an “active duty member of the Army” and faulted Doe for not pressing claims against the cadet who raped her. But Prelogar did not mention that, to press claims against her assailant, Doe would have had to disclose her own identity as a victim of sexual assault. Prelogar urged the court not to revisit Feres “after having been woven into
the statutory fabric for more than 70 years.” She also argued that dismissal of Doe’s claims “reflects the appropriate degree of ‘judicial deference to Congress and the Executive Branch in matters of military oversight.’”
To accept an appeal for review, at least four justices must agree to hear the case.