We must protect our nation’s defenders.
Sexual assault is rampant in the U.S. military and service-member survivors of sexual violence have virtually no judicial recourse.
This doesn’t have to be the case. The unconscionable, perpetual injustice experienced by survivors of military sexual assault is a pure judicial creation, resulting from a misinterpretation of the Federal Tort Claims Act (“FTCA”) that is untethered to statutory text, reason, and experience.
This week, Women’s Law Project joined an amicus curiae (“friend of the court”) brief filed in the U.S. Supreme Court by attorneys at Hunton Andrews Kurth LLP on behalf of 18 organizations who advocate for gender justice.
The brief argues in support of overturning the Feres doctrine, a 70-year travesty that consistently denies justice to U.S. service members who are raped while serving in the military.
Sexual Assault in the Military
According to the U.S. Department of Defense, 20,500 service members were sexually assaulted in 2018. The majority of military sexual assaults involve a service member assaulting another service member, and LGBTQ service members are disproportionately targeted.
Two out of three victims of military sexual assault don’t report it due to well-founded fears of retaliation and a lack of faith in the military judicial system. Of the 5,699 “unrestricted reports” of sexual assault filed in 2019, only 13.9% were referred to court martial and of those just 4.6% led to a conviction of any offense.
A rape victim in the military is 11 times more likely to face retaliation than see their assailant convicted.
The crisis does not spare students at Military Service Academies. Department of Defense statistics show 149 reports of sexual assault involving a cadet or midshipman as a victim in a single school year, 2018-19.
In this particular case, Jane Doe v. the United States, the victim petitioner was assaulted while attending a military academy.
The Feres Doctrine
The Feres doctrine is a judicial invention that arose out of a 1950 case before the U.S. Supreme Court, wherein the Justices held the United States is not liable under the Federal Tort Claims Act (FTCA) for injuries sustained by service members due to the negligence of others while on active duty.
The Court thus has concluded that service-members are disfavored members of society when it comes to vindicating their legal rights vis-à-vis the federal government.
The brief argues Feres was wrongly decided, undermined Congress’ intention, and has manufactured a devastating scenario wherein service members face perpetual injustice from the country they volunteered to serve. It has essentially given a “free pass” to military sexual assailants.
Jane Doe, like thousands and thousands of others, has been deprived of a judicial remedy for the rape she suffered simply because she decided to attend a military academy and serve her country.
We urge the U.S. Supreme Court to revisit Feres and stop what is a clear and cruel ongoing injustice for survivors of military sexual assault.
The Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing and defending the rights of women, girls, and LGBTQ+ people in Pennsylvania and beyond.
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