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Opinion How the Supreme Court can help sexual assault survivors in the military

The Supreme Court in Washington. (J. Scott Applewhite/AP)

Miriam Becker-Cohen is the Douglas T. Kendall Fellow at the Constitutional Accountability Center.

Last month, a U.S. Marine posted a video to TikTok sharing her frustration with authorities’ handling of her rape case. It went viral, underscoring the continuing problem of sexual assault in the military. While the Defense Department has tasked an independent commission with studying the issue, that is not the only government institution that can address this scourge. The Supreme Court will soon decide whether to hear a case that asks it to open the courthouse doors to thousands of survivors of military sexual assault — individuals who have been kept out for over 70 years.

In 1950, in Feres v. United States, the Supreme Court ruled that service members cannot sue the United States for injuries incurred “incident to service.” As a practical matter, the decision has created a near-absolute bar to civil liability for the U.S. government in cases where, ironically, it has failed to protect those very individuals who are willing to sacrifice their lives to protect their country.

The so-called Feres doctrine claims to be grounded in an interpretation of the Federal Tort Claims Act (FTCA), a law enacted in 1946 that makes the United States liable for injuries “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.” But Feres is not a credible interpretation of that statute. It directly contravenes the text and history of the FTCA. The FTCA is a broad remedial statute, and nothing in its text suggests that service members’ claims incurred “incident to service” are barred. On the contrary, the statute contains a long list of exceptions, from which the exception created in Feres is notably absent. Indeed, the 79th Congress, which passed the FTCA, specifically considered and rejected earlier bills containing language barring all claims of service members.

The Feres doctrine is an example of legislation from the bench at its worst. The Supreme Court has justified the doctrine with various shifting policy rationales completely divorced from the FTCA’s text. The most recent justification for Feres — that insulating the federal government from liability for claims incurred “incident to service” improves the ability of the military to competently manage its discipline and affairs — is perhaps the most troubling. Research has found that the Feres doctrine actually promotes abuses of power and emboldens perpetrators of sexual violence in the military.

Indeed, the case that the court could use as a vehicle to reconsider Feres involves a woman whose experience, unfortunately, is all too common in the United States: She was sexually assaulted by a fellow cadet at a United States Military Academy. According to her court filings authorities at the academy failed to adequately respond to the reported rape and refused to acknowledge their role in fostering a culture of sexual violence and misogyny in the military. Eventually, this woman withdrew from the academy and filed suit for damages against the U.S. government.

Sexual assault is a pervasive problem in the U.S. military. According to the Defense Department’s most recent report, an estimated 20,500 service members were sexually assaulted or raped in 2018, and nearly 25 percent of all active-duty women experienced some form of sexual harassment. Crucially, those who experienced sexual harassment were at three times greater risk for sexual assault than those who did not. Of all sexual assaults experienced by service members in 2018, at least 62 percent were perpetrated by fellow service members.

Importantly, military sexual assault affects people of all gender identities and sexual orientations. Sexual minority service members — especially male service members identifying as gay or bisexual — experience sexual harassment and assault at disproportionately high rates.

Despite these sobering statistics, many military sexual assault survivors do not report their experiences due to fear that authorities will not take their claims seriously, or worse, that the report will result in retaliation or reprisal. A recent RAND Corporation study reveals that the odds of leaving the military after experiencing sexual assault double.

Changing the culture of sexual violence in the military is no small task, but granting the pending petition and overruling the Feres doctrine would be a significant victory for military sexual assault survivors. It would allow them to obtain compensation from a government that failed to protect them, and more broadly, send an important signal to military authorities and perpetrators of abuse in the armed services that their behavior will not be tolerated.

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