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Amicus Curiae Blog (June 24, 2021)

Rape is Not an Injury Incident to Military Service – A Plea for SCOTUS to Reexamine the Feres Doctrine

By Sara N. Westerberg*

In May of 2021, the United States Supreme Court rejected an appeal from a servicemember who claimed to have been raped as a West Point cadet.1 The servicemember, known only as Jane Doe, attempted to sue the United States government under the Federal Tort Claims Act,2 claiming West Point’s leadership tolerated hostility towards women and failed to provide support for assault victims.3 The Court’s denial of certiorari for Jane Doe’s appeal stemmed from an eight to one vote, with Justice Thomas alone arguing the Court should have heard the case.4 The decision to reject the appeal was largely based on Feres v. United States,5 a seventy-year-old case, and the resulting Feres doctrine of immunity, which protects the United States government from lawsuits for injuries servicemembers sustain incident to their military duty.6  

In the wake of the Supreme Court’s rejection of Jane Doe’s appeal, Justice Thomas’s dissent points out two fundamental problems with the Feres doctrine of immunity and how America treats its servicemembers.7

The first problem is the inconsistent application of the Feres doctrine.8  As Justice Thomas discusses in his dissent, how the doctrine is applied depends largely on the court hearing the case.9 For example, the Feres doctrine sometimes bars claims of drunken servicemembers who drown while on active duty, but sometimes it does not.10 Similarly, the doctrine bars claims for servicemember’s injuries sustained while waterskiing behind a military owned recreational boat11 but not for injuries caused by servicemember’s negligent operation of a military van while attending a rugby event.12 As a result of these inconsistent applications of the Feres doctrine, it is unclear what is considered an injury incident to military service. This lack of clarity has resulted in the rape and sexual assault of female servicemembers being considered injuries incident to their military service.13 Frankly, this is absurd. Saying that sexual assault comes with the territory of being a member of the United States military is not only baffling to this author, it is offensive to female servicemembers who dedicate their lives to their country.

The second problem, and perhaps the most concerning, is that these inconsistencies and resulting confusions have occurred over the last seventy years without being addressed by the Court, despite ample opportunities to do so.14 In the last seventy years there have been hundreds of thousands of military members who have been victimized by the Feres doctrine.15  Despite the immense number of cases the Supreme Court could have heard in the past seventy years, the implications of the Feres doctrine have never been reconsidered.16 Justice Thomas speculates the Court is wary of overturning a seventy-year-old precedent,17 but he points out precedent has been overturned a number of times in recent years when laws have been deemed inherently wrong or outdated.18 Another possible reason the Court is unwilling to readdress Feres is because it is waiting for Congress to take action in changing the law to permit lawsuits currently barred by the doctrine. However, if this is the case, the Court has provided Congress with seventy years to change the law or redefine the scope of the Feres doctrine. Nonetheless, Congress has made no attempt to do so in over seven decades.19 It is clear that if the Feres doctrine is going to be clarified, it will have to be addressed by the United States Supreme Court.

To most people, this law has reasonable intentions. On its face, the law was designed to prevent servicemembers from suing the United States government for gunshot wounds, loss of limb, psychological trauma, and other injuries directly linked to their training or combat.20 However, the Court has allowed this doctrine to expand to encompass every servicemember injury where the government could be considered at fault.21 Because of this, where an American citizen could sue the government for a car accident involving a government-issued vehicle, a servicemember in the same situation could not sue the government solely because they are an active servicemember.22 This leaves servicemembers with fewer legal remedies than everyday citizens. While this author agrees that allowing servicemembers to sue the government for injuries sustained during their active military duty may open a proverbial can of worms, the scope of this doctrine needs to be clearly defined. A female servicemember’s sexual assault should not be written off as “incident to her military service.” Servicemembers volunteer to serve their country with the understanding that they may sustain broken bones, lacerations, gunshot wounds, and even loss of limb. But they do not – and should not have to – anticipate being sexually assaulted because they made the decision to represent their country. Including such injuries as “incident to military service” provides yet another burden for women who wish to join the military. As it stands, women make up less than 20% of the enlisted forces despite representing over half of American citizens.23 Just last year, the Department of Defense reported 6,290 sexual assaults within the collective military branches, with an estimated 13,210 assaults going unreported.24  Of these reported assaults, the vast majority have been and continue to be women.25  This means expanding what is considered an injury incident to military service to include sexual assault will disproportionately affect female servicemembers with little effect on their male counterparts.

In recent years, the expansion of the Feres doctrine has gotten out of hand. The scope of this doctrine is ill-defined at best, and an insurmountable barrier to relief at its worst. Nonetheless, the Court refuses to hear any cases challenging the application of the doctrine. As time goes on, the scope of the doctrine will likely continue to expand unless it is explicitly overturned or strictly defined. The question is not if the Supreme Court should re-address the Feres doctrine, the question instead is how far the doctrine will continue to expand while the Court waits for an apathetic Congress to act, and how many sexual assault victims will be denied the protection of the law while the Court waits. 

Footnotes

* JD Candidate, Mitchell Hamline School of Law, 2022. This post is dedicated to all the women who currently serve in the United States Military and all the women who came before them.↩︎

  1. Doe v. United States, 141 S. Ct. 1498, 1498 (2021) (Thomas, J., dissenting). ↩︎
  2. 28 U.S.C.A. §§ 2671-2680. ↩︎
  3. Doe, supra note 1 at 1498 (Thomas, J., dissenting); see Jessica Gresko, Over Thomas Dissent, High Court Rejects West Point Case, Yahoo News (May 3, 2021) https://news.yahoo.com/over-thomas-dissent-high-court-183448182.html [https://perma.cc/EM3X-RNFZ]. ↩︎
  4. Doe, supra note 1 at 1498 (Thomas, J., dissenting). ↩︎
  5. 340 U.S. 135 (1950). ↩︎
  6. Id. at 146. ↩︎
  7. Doe, supra note 1 at 1498–500 (Thomas, J., dissenting). ↩︎
  8. Id. at 1499. ↩︎
  9. Id. ↩︎
  10. Id. (comparing Morey v. U.S., 903 F.2d 880, 881 (CA1 1990) with Drier v. U.S., 106 F.3d 844, 845-46 (CA9 1996)). ↩︎
  11. Id. (comparing McConnell v. U.S., 478 F.3d 1092, 1093-94 (CA9 2007) with Whitley v. U.S., 170 F.3d 1061, 1068-70 (CA11 1999)). ↩︎
  12. Id. ↩︎
  13. Id. (citing Doe v. Hagenbeck, 870 F.3d 36, 51, 58-62 (CA2 2017)). ↩︎
  14. Id.; see Jonathan Turley, The Supreme Court Fails to End the Feres Doctrine . . . Now it is up to Congress, Jonathan Turley (May 6, 2021) https://jonathanturley.org/2021/05/06/if-congress-truly-supports-our-troops-it-must-end-the-feres-doctrine/ [https://perma.cc/T2UN-UAYE]. ↩︎
  15. Turley, supra note 14. ↩︎
  16. See Daniel v. United States, 139 S. Ct. 1713 (2019) (Thomas, J., dissenting) (Supreme Court denied review of a case where a female servicemember died from childbirth as a result of medical malpractice at a military hospital). This is a mere example of how far the Feres doctrine has expanded from injuries from combat, training, and related circumstances. ↩︎
  17. Doe, supra note 1 at 1499 (Thomas, J., dissenting). ↩︎
  18. Id. at. 1499–500 (citations omitted). ↩︎
  19. Doe, supra note 1 at 1498–500 (Thomas, J., dissenting). ↩︎
  20. See Patricia Kime, Supreme Court Justice Castigates Feres Doctrine, Court in Military Rape Case, Military.com (May 3, 2021), https://www.military.com/daily-news/2021/05/03/supreme-court-justice-castigates-feres-doctrine-court-military-rape-case.html [https://perma.cc/WG3D-PSNU]. ↩︎
  21. Injuries include anything from sexual assaults to training incidents, to allegations of command negligence, and military medical malpractice. See Doe, supra note 1 at 1499. ↩︎
  22. Id. ↩︎
  23. Demographics of the U.S. Military, Council Foreign Relations (July 13, 2020), https://www.cfr.org/backgrounder/demographics-us-military [https://perma.cc/K784-BUXH]. ↩︎
  24. Eleanor Watson, Military Sexual Assaults Increased Slightly in 2020, According to Annual Report, CBS News (May 13, 2021), https://www.cbsnews.com/news/military-sexual-assault-2020/ [https://perma.cc/VB7V-98TC]. ↩︎
  25. Laura C. Wilson, The Prevalence of Military Sexual Trauma: A Meta-Analysis, 19 Sage J. 584 (2016) (The results revealed that 15.7% of military personnel report military sexual trauma (3.9% of men, 38.4% of women) when the data includes both harassment and assault. Additionally, 13.9% report military sexual trauma (1.9% of men, 23.6% of women) when the data assesses only assault and 31.2% report military sexual trauma (8.9% of men, 52.5% of women) when the data assesses only harassment.). ↩︎