Sexual assault has been a hot topic in the military for years. When a service member is convicted of this crime under Article 120 of the Uniform Code of Military Justice (UCMJ), they may face punishments such as bad conduct or dishonorable discharge, imprisonment, and forfeiture of all pay, allowances, and veteran benefits.
But do the victims of SA receive any compensation for their physical injuries, emotional traumas, mental health service costs, or other damages? Traditionally, the answer has been no. This is a prime example of how the military focuses purely on discouraging unwanted behavior by punishing wrongdoers while giving little thought to the victims.
Historically, the military has done almost nothing to compensate victims for the harm they might have suffered, aside from very limited compensation available through the US Department of Veterans Affairs (VA) after leaving the military. However, more options are becoming available for military sexual assault victims to seek damages.
Why Doesn’t the Military Compensate SA Victims?
Service members receive no direct compensation or even an apology from the military for sexual assault incidents. In fact, they are barred from any tort or administrative recovery under both the Federal Tort Claims Act (FTCA) and Title VII. Here’s why.
The Feres Doctrine
The FTCA allows federal employees to recover damages against the government when it has committed a wrongful act, or tort, leading to civil legal liability. However, the military is exempt from such suits under the Feres doctrine established in 1950.
This doctrine stems from the Supreme Court case Feres v. United States involving three incidents where servicemen were allegedly harmed by the negligence of others in the military. Feres himself, an army lieutenant, died in a fire while sleeping in his barracks.
The Court held that all three accidents “arose out of or in the course of activity incident to service” in the military, preventing the government from being liable under the FTCA. The purpose of this ruling was to prohibit troops from seeking damages for combat and training casualties, but more recently, it has been used to excuse the military from compensating victims of sexual assault.
Title VII Exemption
Title VII, which prohibits employment discrimination, harassment, and retaliation, does not apply to most federal employees and service members. Courts have relied on the language of Title VII itself, regulations interpreting Title VII, and an extended version of the Feres doctrine to deny claims. As a result, sexual assault victims cannot recover damages from the military while still in service, nor can they recover damages directly once separated.
What Compensation is Made Available to SA Victims?
While minimal, the military does offer a handful of benefits to victims who come forward about sexual assault.
The military encourages victims to file an unrestricted sexual assault report, citing these benefits:
- Hold the offender appropriately accountable.
- Prevent the perpetrator from victimizing others.
- Receive “a sense of closure or healing” to aid emotional recovery.
- Gain the ability to file for a military protective order.
- Become eligible for an expedited transfer to a different unit or base.
- Gain the right to speak about the incident with friends (filing a restricted report requires the victim to remain close-lipped).
VA Disability Benefits
Once a service member leaves the military, they become eligible for VA benefits. Survivors of sexual assault may seek disability compensation to help pay for counseling and other treatment for diagnosed conditions resulting from SA incidents, such as PTSD, depression, anxiety disorder, panic attacks, and substance abuse.
The VA relaxed its standard for determining eligibility for PTSD benefits in 2011. Even so, victims are only compensated for the harms they can prove are directly attributed to the attack. They do not receive compensation for the attack itself or the failure of the government to protect them from the attack.
New Legislation Could Expand Retroactive VA Disability Benefits
Under the current rules, veterans can receive VA benefits for injuries attributed to military sexual assault back to their date of separation. To qualify for these retroactive benefits, veterans must file a disability claim within one year of leaving the service. For claims made after this deadline, benefits begin from the filing date.
The current rules result in many months of missed benefits for victims who may not feel comfortable discussing their trauma with the VA until several years have passed. Under the newly proposed legislation, retroactive benefits would be available to all approved veterans, even if they file more than 12 months after their date of separation.
If the Court rules in favor of the plaintiff, it’s unclear how many cases and what kinds of injuries would be approved for retroactive payouts. A veteran with a 50 percent disability rating seeking three years’ worth of retroactive benefits could receive about $35,000.
Sexual Assault Victims May be Able to Sue Their Assailants
Civilian victims of sexual assault have long been able to file a personal injury lawsuit against their assailants. While the military has traditionally denied service members this option, a 2022 court ruling from the 9th US Circuit Court of Appeals in San Francisco is setting a new precedent.
In November 2019, retired Army Col. Kathryn Spletstoser sued the former vice chairman of the Joint Chiefs of Staff, Air Force Gen. John Hyten, with an accusation of sexual assault during her time as his aide. Rather than suing the military for negligence, Spletstoser sued Hyten directly for damages.
The Justice Department attorneys representing Hyten sought to dismiss the case, citing the Feres doctrine. However, in August 2022, a three-judge panel ruled in Spletstoser’s favor, saying she does indeed have the right to file this lawsuit. The judges argued that the Feres doctrine doesn’t apply to sexual assault because such incidents do not serve any military purpose.
The final outcome of this case is still pending as of this writing, but the preliminary ruling has opened the door to others like it.
For instance, in October 2022, a female employee at an Alabama military base was granted nearly $154,000 in damages for sexual harassment, physical assault, and retaliation. The perpetrators were a mix of civilian supervisors and military officers.
Then, the family of Vanessa Guillén, a 20-year-old soldier who reported sexual harassment at Fort Cavazos (Fort Hood) before being murdered in 2020, is seeking $35 million in damages from the US government and aims to prove that Guillén was sexually assaulted. The lawyers will still have to overcome the longstanding Feres doctrine, but last year’s pivotal decision from the 9th Circuit Court could pave the way.
Build a Defense Against Military Sexual Assault
At Joseph L. Jordan, Attorney at Law, we believe that every genuine sexual assault is a tragedy. But we also believe that every false or exaggerated accusation is equally tragic.
If you have been falsely accused of sexual assault, or the circumstances surrounding your involvement have been exaggerated, our legal team can help. Building your defense may seem overwhelming at first, but our experienced military defense lawyer can ease your burden. Thanks to our unwavering support and aggressive legal representation, we’re equipped to help you obtain a favorable outcome in your case. Call us toll-free at 800-580-8034 or 254-221-6411 to speak directly with Mr. Jordan today.