Sexual assault: The law versus accountability

"Jane Doe" was raped by a friend while unconscious. She suffered internal injuries from this boiler room incident. Her college did not conduct a forensic examination. She filed a restricted report to preserve her anonymity. She feared retaliation, because of the allegedly misogynistic culture at her institution. She had successfully completed two years of college, but opted to leave. She subsequently filed suit, alleging that her former school's sexual assault policies were inadequate to protect students from sexual violence.

Judge Denny Chin dissented from Jane Doe's loss in the 2nd U.S. Circuit Court of Appeals. He viewed her plight as a desperate cry for moral accountability. In Justice Chin's version of the complaint: "The harassment resulted from practices ... that the individual defendants permitted to proliferate ... depriving Doe of an equal education because of her gender. The[y] ... tolerated a misogynistic culture, including ... imposing inadequate punishment for offenders, and permitting sexually explicit, violent, and degrading group chants during team building exercises." Jane Doe I v. Hagenbeck, 870 F.3d 36, 50 (Chin, J., dissenting).

As confirmed by Vanessa Grigoriadis, in her 2017 book "Blurred Lines: Rethinking Sex, Power & Consent on Campus": "In April 2011 ... for the first time in American history, the American government called sexual assault a civil rights issue." Title IX of federal civil rights law prohibits gender discrimination. But this ubiquitous legal regime was not applied to Jane Doe's case. She was a West Point Military Academy cadet. Title IX does not apply to an educational institution that trains individuals for military service. 20 U.S.C. Section 1681(a)(4). The applicable law would have been the Uniform Code of Military Justice. But she was (honorably) discharged from the Army.

Doe's only legal remedy for the West Point rape was the Federal Tort Claims Act. Under this 1946 legislation, the federal "Government is liable for money damages ... [f]or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. Section 1346(b)(1) (emphasis supplied).

The relevant legislative exception -- to the comprehensive FTCA waiver of sovereign immunity -- bars "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 28 U.S.C. Section 2680(j).

In 1950, the U.S. Supreme Court added a judicial exception: "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146 (1950).

The federal courts have since eschewed second-guessing the military's handling of intra-military discipline. The litany of objections to civilian court review of military decision-making

includes: Navy sailors claiming ill-treatment on the basis of race; an Army soldier's claim of being fed secret doses of LSD; various actions against superior officers; negligent death, due to unsafe barracks amenable to fire; and medical malpractice by Army doctors. As the Jane Doe intermediate Court of Appeals thus echoed: "The future officers who study and train at West Point, like the enlisted men and women they are trained to command, may not ... recover damages for injuries that 'arise out of or are in the course of activity incident to service.' Doe's ... claim against her superior officers, implicating Army training, supervision, discipline, education, and command, triggers the incident-to-service rule and cannot proceed." Jane Doe I, at 49.

But a number of Supreme Court justices have countered that the FTCA's broad language, for example, "renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees." United States v. Johnson, 481 U.S. 681, 693 (Justices Antonin Scalia, William Brennan, Thurgood Marshall, and John Paul Stevens, dissenting) (1987), and Lanus v. United States, 133 S.Ct. 2731, 2732 (2013) (Justice Clarence Thomas, dissenting from denial of cert.)

These justices all demurred to the Supreme Court's 1950 Feres "incident to service" exception. It judicially foisted a non-combat bar atop the Act's original prohibition of civilian court suits against military officials engaged in combat. In their view, Congress had expressly (and reasonably) precluded intra-military combat-related claims from reaching civilian courts. But this lone prohibition facially demonstrated "that Congress specifically considered, and provided what it thought needful for, the special requirements of the military. [So t]here was no proper basis for us to supplement -- i.e., revise -- that congressional disposition" via the gratuitous Feres bar. Johnson, at 693.

One could counter that Congress has opted not to overrule the Feres bar for over 70 years. The 2nd Circuit thus rejected Jane Doe's due process and equal protection tort claims -- marinated in Supreme Court precedent: "Congress ... 'has not provided a damages remedy' for the constitutional claim that Doe asserts. [Thus] ... the 'inescapable demands of military discipline' ... [dictate] that absent Congressional authorization, 'it would be inappropriate [for courts] to provide enlisted military personnel a ... [civilian court] remedy against their superior officers.' " Jane Doe I, at 42.

This month, the U.S. Supreme Court refused to review Jane Doe's West Point rape case, which never advanced beyond the pleading stage. Jane Doe v. United States, 141 S.Ct. 1498 (2021) (mem.). The finality of her loss -- after a seven-year skirmish with West Point -- triggered Justice Clarence Thomas' renewed dissent. His complaint was that: "she could have brought these same claims had she been a civilian contractor employed by West Point instead of a student." Per his illustrative hypothetical: Civilian and military Pentagon employees are simultaneously hit by a federal bus driver in a Pentagon parking lot. Thus, "[u]nder our precedent ... only the civilian would have a chance to litigate his claim on the merits." Most poignantly: "[I]f the [1950] Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell." Doe, at 1499.

So the time has come to revisit the Feres problem of whether intra-military sexual assault qualifies as an "activity incident to service." The seemingly impenetrable barrier to intra-military litigation in civilian courts is just now being reconsidered by Congress. It has the ultimate say over such military matters, specifically "[t]o make Rules for the Government and Regulation of the land and naval Forces." Const., Art. I, Section 8. On May 13, Rep. Jackie Speier (D-California), thus introduced a bill that would permit troops to seek monetary damages for sexual harassment or assault by any Defense Department personnel. Rep. Adam Smith (D-Washington), chairman of the House Armed Services Committee, ostensibly supported Speier's bill. As he remarked: "No one piece of legislation is going to change this [rise in military sexual harassment], but the legislation Jackie has put forward is our best shot. The culture within the military must fundamentally change."

Speier's bill is named for Vanessa Guillén, an Army specialist murdered by a fellow soldier at Fort Hood in April 2020. That death spawned renewed angst over how the Army responds to military harassment and disappearances. Investigators found that a "toxic culture" at Guillén's Texas Army base facilitated sexual harassment. Missy Ryan, "In Congress, momentum grows behind effort to overhaul military handling of sex crimes," Wash. Post, May 13, 2021.

In coincidental unison, Rep. Speier, Justice Thomas, and Secretary of Defense Lloyd Austin all appear to be on the same page -- as epitomized by the latter's fresh vow to eliminate sexual assault throughout the entire military. One hopes that when all the verbal dust settles, future Jane Does are not denied an effective remedy -- especially for those who feel compelled to leave the military service -- for this crudest of deplorable reasons. 