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For the previous two years when we had women's marches, January was the month we did a lot of reflection about women's issues. It's January, so let's reflect about women a bit.

A woman who is sexually assaulted in the civilian world has several ways to seek justice. She can call the police, and thereafter watch her assailant's prosecution. She has the opportunity to sue him. After the assault, she can try to mend and recuperate in supportive surroundings. Sadly, none of these options may be available to a woman sexually assaulted in the military.

In her book "Soldier Girls," author Helen Thorpe describes the serious problem in the military. (Dreamscape, 2014) A soldier Thorpe discusses said predatory men are considered a kind of friendly fire. One woman was sexually assaulted by the Army recruiter as soon as she signed her contract. In "Ashley's War" by Gayle Tzemach Lemmon, a woman was raped at a Marine Corps ball. (Harper, 2015) Her assailant had previously done the same thing to another woman Marine.

Military culture, with its frequent assignment changes, makes it possible for predators to wander around bases freely. They escape detection while they prey on persons they usually outrank and sometimes supervise.

Reporting Sexual Assaults in the Military

One way to report a sexual assault in the military is to go through the chain of command. Such unrestricted reporting results in an official investigation. It also results in retaliation. The victim is seen as disloyal. She is perceived as betraying her unit. She is taunted with such slurs as "crazy lying whore." 28 JMARJCIL 551. A woman described in "Soldier Girls" reported a man who raped her while she was drunk. The troops lined up behind him. He was convicted of committing adultery and she was shunned and given a dead-end job.

Restrictive reporting of a sexual assault in the military is also an option. This alternative does not prompt an official investigation, and there is no report at the command level or to military police. However, the victim may seek medical and psychological treatment. In other words, the victim is electing to skip the harassment and retaliation. Although confidentiality is supposedly ensured, the reality is that commanders often demand the identities of both the victim and the perpetrator. Word gets around and victim persecution follows.

To no one's surprise, victims of sexual assaults in the military often do not report the incidents. Not only because of reprisals, but because it is drilled into recruits to put the good of the unit above personal interests. The Department of Defense estimated that in 2014, 75 percent of those assaulted did not make a report.

Prosecuting Sexual Assaults in the Military

Even when a woman is brave enough to make an official report and she steels herself for the de rigueur bullying, military prosecutions can be frustrating and maddening. If they happen at all, that is.

The woman described in "Ashley's War," who was raped by the repeat rapist, was convinced by her brother to file an official report in the military. But the Marine Corps refused to prosecute. As the Marine Corps ball was held in a civilian hotel off-base, the woman reported the rape to the sex crimes unit at the San Diego District Attorney's office. Two days into trial, the assailant pled guilty and was sentenced to state prison. People v. Dowson (unpublished, 2006, WL 2673277).

In the case of United States v. Benjamin Johnson, 54 M.J. 67, the Army did prosecute, and the man was convicted of both raping a teenager and assaulting a military woman he outranked and supervised. He regularly gave the woman back rubs while she worked at her desk. She pulled away from him the best she could and continued working. The Court of Criminal Appeals for the Armed Forces reversed the assault and battery conviction because the woman did not verbally protest. The dissenting judge noted the staff sergeant was in a power relationship with the woman, not a dating relationship, and that there was nothing in the record to indicate the woman either invited or consented to being repeatedly massaged.

Civil Suits

Unlike civilian counterparts, women who are sexually assaulted in the military cannot sue. The Federal Tort Claims Act (FTCA; 28 U.S.C.A. 1346 et seq.) was enacted in 1946 after a military B-25 crashed into the Empire State Building, killing 14 people and causing significant property damage. Under the act, traditional sovereign immunity is waived, and the government is usually liable for tortious conduct committed by its employees. In 1950, however, the U.S. Supreme Court carved out a judicial exception to the FTCA's immunity waiver in Feres v. United States, 340 U.S. 135 (1950). In Feres, the court determined the government was not liable for injuries to "servicemen" where the injuries are in the course of activity incident to service.

Servicewomen have not fared any better than servicemen under the Feres doctrine. In a 2013 case, a servicewoman was required to perform physical training while she was pregnant, against doctor's orders. Army personnel were told she had a high risk pregnancy but still required her to perform strenuous physical activities. At one point, she underwent a procedure to prevent premature birth. Ultimately, her son was born prematurely and died 30 minutes after birth. The baby's father filed an action in federal district court on behalf of himself and the baby's estate, avoiding having the servicewoman sue the government herself. The 9th U.S. Circuit Court of Appeals ruled against the father and the estate, stating that "unless and until Congress or the Supreme Court choose to 'confine the unfairness and irrationality that Feres has bred,' we are bound by controlling precedent." United States v. Ritchie, 733 F.3d 871 (9th Cir. 2013).

In the context of military sexual assaults, another case concerns a woman in the National Guard who was assaulted by a man who outranked her. She did not report the incident, and for the next eight years the sergeant made constant sexual invitations, insinuations and remarks. Because she did not want to damage either her career or her reputation, she did not report that conduct either. Eventually he raped her. A federal district court determined the woman's claims arose from injuries incident to service and were barred by the Feres doctrine. Perez v. Puerto Rico Nat. Guard, 951 F.Supp.2d 279 (D.P.R. 2013),

In 2011, 28 military sexual assault victims filed a class action against Donald Rumsfeld and Robert Gates, alleging these former secretaries of defense fostered an environment that resulted in the plaintiffs becoming victims of sexual assault. Their claims were made for violation of their constitutional rights pursuant to the case of Bivens v. Six Unknown Agents of the Federal Agents, 403 U.S. 388 (1971). A federal court dismissed it and the 4th U.S. Circuit Court of Appeals affirmed, stating "it is Congress, not the courts, that the Constitution has charged with that responsibility." Cioca v. Rumsfeld, 720 F.3d 505 (2015).

There may be a slight chance that something is about to happen vis-à-vis the Feres doctrine. In Daniel v. United States of America, 889 F.3d 978 (2018), a service woman gave birth to a baby. She experienced postpartum hemorrhaging and died approximately four hours after delivery. The woman's husband brought an action for medical negligence at a naval hospital, and a federal trial court dismissed the case under the Feres doctrine. In affirming, the 9th Circuit stated: "If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so." The widower filed a petition for certiorari in the U.S. Supreme Court on Oct. 16, 2018. The U.S. solicitor general waived the right to respond. But the high court ordered the federal government to provide a formal response by Dec. 28. However, the government asked for more time, and its response is now due Jan. 28, 2019.

Recovery from Military Sexual Trauma

Trying to recover from military sexual trauma can be challenging. When a veteran makes a claim to the Department of Veterans Affairs for disability due to PTSD resulting from military sexual trauma, corroborating evidence is required, which evidence is usually not necessary when the PTSD results from other stressors, such as combat. 38 C.F.R. Section 3.304(f)(5). Corroboration can be difficult if the victim did not report an attack while still in the military. Thus, the victim's fear of retaliation if a report is made while still in the military can have long-lasting effects, even after discharge. But even when a report is made, formal investigations performed in the military are destroyed after two years. Consequently, necessary evidence may be shredded if a woman tries to recuperate on her own before resorting to an administrative process.

Finding a place to recuperate is also difficult. Many women veterans feel unsafe in places where significant numbers of male veterans are also housed. If women ask for segregated housing, they may be met with a facility claiming such housing is not permitted under the Fair Housing Act. 42 U.S.C. Sections 3601-3619. Indeed, that claim was made when a woman was again assaulted while trying to convalesce in a veterans' facility from a sexual assault in the military. The veterans' facility where the second assault occurred housed 122 male and six female veterans. Sharon T. v. New Directions Inc., 2016 WL 158223.

Conclusion

Remedies to the military sexual assault situation require attention by both Congress and the U.S. Supreme Court. Even a president lacks the power to bring about significant change. After the former Soviet Union invaded Afghanistan in 1980, President Jimmy Carter determined it was necessary to reinstate the registration process. The draft was ended in 1973, and young men were no longer required to register when they turned 18. The president requested funds for registration of both men and women for military service, but Congress only allocated funds for the registration of men. A class action was filed by a group of young men from Pennsylvania who claimed their rights to equal protection and due process were violated because there was an increased probability of males being inducted. Three days before registration was to begin, a federal court ordered the government to cease the registration process. The issue was heard before the U.S. Supreme Court in 1981. Rostker v. Goldberg, 453 U.S. 57. The court stated that Congress conducted hearings and held floor debate in response to the president's request for authorization to register women, and its decision to exempt them was not an accidental byproduct of a traditional way of thinking about women.

Article I, section 8 of the Constitution commits exclusively to Congress the powers to make rules for government regulation of land and naval forces. If so inclined, Congress could change the military sexual trauma situation. And, if so inclined, the U.S. Supreme Court could modify the Feres doctrine.

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Ben Armistead

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