Can Military Sexual Assault Survivors Sue Their Assailants?

Sexual assaults committed by someone in the general population often give rise to criminal prosecutions, which may result in fines, jail time, probation, and sanctions against the offender, if convicted. There are similar repercussions in the military, where sexual assaults are punishable under Article 120 of the Uniform Code of Military Justice (UCMJ). Sentences may include bad conduct or dishonorable discharge, imprisonment, and forfeiture of all pay, allowances, and veteran benefits.

However, for both criminal cases among civilians and courts-martial in the military, the sexual assault victim receives no monetary compensation for their physical injuries, emotional traumas, mental health service costs, and other economic and non-economic damages. To seek compensation, civilian victims of sexual assault have the option of filing a personal injury lawsuit against their assailants. Historically, military service members have not had this option. But a recent court ruling may be setting a new precedent.

A Failed Attempt to Allow Military Sexual Assault Survivors to Sue

In 2012, eight current and former service members filed a lawsuit alleging they were raped, sexually assaulted, or harassed during their time in service and were retaliated against after reporting the abuse. The suit outlines, in disturbing detail, the alleged experiences of the plaintiffs being assaulted and facing demeaning retaliation. In contrast, one perpetrator faced minor court-martial convictions of adultery and indecent language and was sentenced to 45 days in military confinement.

The conclusion of this case came in early 2013 with this analysis:

“This case raises many important public policy issues. But the issue before the Court is not whether the culture described in the complaint exists, whether it is deplorable, or whether plaintiffs suffered harm at the hands of the perpetrators of these criminal acts and those who sheltered them from justice or further victimized plaintiffs. The factual recitations, which the Court must accept as true at this juncture, describe brutal and criminal assaults, compounded by a degrading and humiliating institutional response, and they depict an unacceptable environment in need of repair from the top down. But the question posed by the defense motion is whether a court has the power to provide the particular sort of remedy sought here for the specific injustices alleged in the complaint. That is a purely legal question, and its answer is no.”

The analysis goes on to explain that a plaintiff may not recover damages from a federal official if there are “special factors counseling hesitation” or the defendant has qualified immunity. The judge determined that both applied in this case. “Even assuming the veracity of all the plaintiffs’ allegations, after reviewing the relevant legal precedent, the Court concludes that this complaint must be dismissed. As the Supreme Court has made clear: ‘judges are not given the task of running the Army.’”

The Feres doctrine also affected the decision to dismiss this case. Feres holds that “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.” The purpose of this 1950 Supreme Court ruling was to prohibit troops from seeking damages for combat and training casualties, but it has extended to other types of injuries in more recent cases, including sexual assaults.

The plaintiffs opposed the motion to dismiss, protesting that being victimized by a sexual assault couldn’t possibly constitute an activity incident to military service. But the judge argued the following:

“Whether being raped is an ‘activity’ incident to military service is not the relevant inquiry; the question is: what is the source of the alleged injury? The complaint specifically asks that plaintiffs be compensated for the harm they suffered—including the assaults themselves—which they claim flowed from the defendants’ alleged mismanagement of the military. In other words, the assaults are the alleged ‘injury,’ not the ‘activity.’”

A More Recent Effort

The case outlined above is not the most recent attempt at suing perpetrators of military sexual assault. In November 2019, retired Army Col. Kathryn Spletstoser filed a lawsuit against the former vice chairman of the Joint Chiefs of Staff, Air Force Gen. John Hyten, accusing him of sexual assault during her time as his aide. This is an unprecedented lawsuit because Spletstoser sued Hyten directly for damages rather than suing the military for negligence.

In August 2022, a panel of judges ruled in favor of Spletstoser, saying she does, in fact, have the right to sue Hyten for damages. The Justice Department attorneys representing Hyten sought to have the case dismissed on the basis of the Feres doctrine. However, the three-judge panel ruled that Feres doesn’t apply to sexual assault because such incidents do not serve any military purpose.

The outcome of this case is sure to make waves, starting in the 9th US Circuit Court in San Francisco where the ruling was made. But it could also trigger the Justice Department to appeal, sending the case to the Supreme Court. There, the issue of whether service members can sue over sexual assault would be decided once and for all.

Practical Considerations

Any time a lawsuit is considered, the remedy must also be examined. Any attorney looking at a libel or slander case will first concern themselves with the financial stakes of the individual sued. If the the individual they are suing lacks substantial resources, then you will be hard pressed to find an attorney that will take this type of case on as a contingency fee. Contingency fees are common in lawsuits. If you win, your lawyer receives a portion of the damages awarded by the court based on your contract with the attorney. When the party sued lacks resources, most attorneys won’t take the case unless you pay them their hourly rate. That means you will have to pay an hourly rate to obtain an attorney’s services at the risk of losing the suit. Additionally, even if you win, you only gain the satisfaction that the person sued was wrong. You will likely receive no other compensation as the party sued has no resources to give up. Enforcing payment of damages against someone with no money is very difficult.

Defend Yourself Against Accusations of Military Sexual Assault

At Joseph L. Jordan, Attorney at Law, we believe that one victim of sexual assault is one victim too many. But we also believe that one falsely accused service member is one false accusation too many.

If you have been falsely accused, or the circumstances surrounding your involvement in a sexual assault have been exaggerated, we’re here to help. Building your defense may seem overwhelming at first, but our experienced military defense lawyer can ease your burden. With Mr. Jordan’s unwavering support and aggressive representation, we’ll help you obtain a favorable outcome in your case. Call us toll-free at 800-580-8034 or 254-853-4581 to speak directly with Mr. Jordan today.

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