Christine Dunn, Jillian Seymour and Elena Rauch
Last month, a bipartisan group of senators introduced legislation that would bolster protections for Coast Guard Academy cadets who report experiencing sexual assault. This legislative attempt comes on the heels of a congressional investigation, initiated in December 2023, into the Academy’s mishandling of decades of reports of sexual assaults. Records submitted to Congress this month revealed a deliberate plan by Coast Guard Academy leadership to keep hidden the prevalence of sexual assaults at the Academy, including making “a list of the pros and cons of being transparent” with Congress. In keeping the Academy’s history of rampant sexual assault a secret, decades of survivors were denied justice.
These disturbing details echo the experiences of innumerable military sexual assault survivors, whose attempts to seek redress have met steep institutional resistance. In the spring of 2010, a young female cadet at the U.S. Military Academy at West Point was violently raped by a male classmate in an academic building. Prior to the assault, the cadet was near the top of her class. One professor described her as among “the most professional and internally motivated students” at the academy. Yet in the aftermath of the assault, the cadet found herself reeling from not only the attack but also from the academy’s failure to adequately handle her report of sexual assault. She suffered from acute emotional distress, dissociative episodes, and debilitating anxiety. The cadet withdrew from West Point three months after the assault.
That same year, a Department of Defense survey found that over half of female cadets at American military academies reported experiencing unwanted sexual contact.
The Feres doctrine and the FTCA
While the West Point cadet may have had viable claims against her school had she been a student at a non-military university, jurisprudence known as the Feres doctrine obstructed her path to justice in civil court. In its 1950 decision Feres v. United States, the Supreme Court effectively ruled that the Federal Tort Claims Act (FTCA) bars service members from pursuing civil claims for most tortious injuries. Subsequent decisions have interpreted Feres to encompass even those claims stemming from sexual assault.
The FTCA provides plaintiffs with the primary means by which to sue the federal government for tortious injuries. The act not only compensates individuals for governmental wrongdoing but also deters injurious conduct by imposing liability on the federal government for certain acts of its agents. However, exceptions in the act prevent government liability in certain circumstances, including when harms “aris[e] out of the combatant activities of the military … during time of war.”
Reaching far beyond the plain text, the Supreme Court in Feres held that the FTCA’s “combatant activities” language barred claims for all service member “injuries [that are] incident to service,” even those stemming from events outside the performance of military duties. This expansive holding created a near-impervious barrier to service members seeking civil relief for tort claims, including sexual violence. The Supreme Court has clung unflinchingly to the Feres doctrine ever since, cloaking the federal government with almost-total immunity to claims involving military sexual violence, including the claims of the West Point cadet.
After the West Point cadet filed a complaint against the United States in civil court, the Southern District of New York dismissed her FTCA claims due to Feres, with the Second Circuit affirming thereafter. In 2020, the Supreme Court denied the cadet’s writ of certiorari. In an impassioned dissent, Justice Clarence Thomas lambasted the questionable premise of Feres, stating that “one might be concerned to find out that a student’s rape is considered an injury incident to military service.”
The cadet’s case is but one of countless failed attempts by service member-survivors to achieve justice through civil claims under the FTCA. The obstacles posed by Feres are especially troubling given the increasingly rampant rates of military sexual assault. In 2020, service members reported 6,290 incidents of sexual assault, a 122.41% increase from the number of reports in 2015. Between 2021 and 2022, the number of reports rose to 8,942. Given the vast number of sexual assaults that go unreported, the actual number is likely far higher. For example, the DOD estimates that roughly 20,500 service members experienced sexual assault in 2018, more than triple the number of reported incidents that same year.
The Ninth Circuit’s groundbreaking Spletstoser decision
A 2022 Ninth Circuit ruling, however, rejected the traditional application of the Feres doctrine, broadening the pathway for military sexual assault claims. The decision involved the FTCA claims of plaintiff Kathryn Spletstoser, a former colonel, who alleged that a general entered her hotel room and sexually assaulted her. The Ninth Circuit held that Spletstoser’s injuries were not “incident to service” and that the Feres doctrine, therefore, did not bar her claims. The court reasoned that “[i]t is unimaginable that [Spletstoser] would have been ‘under orders’ to submit to [the General’s] sexual advances, or that she was performing any sort of military mission in conjunction with the alleged assault.” In other words, sexual assault could not be considered incident to military service, thereby opening the door for holding the military accountable for sexual violence. Following the decision, the Department of Justice agreed to pay Spletstoser nearly $1 million to settle her claims.
Promising signs of change
Spletstoser suggests a more hopeful future for military sexual assault claims, at a time when there is a growing call for reform. Within the past decade, service member-survivors have filed an ever-growing number of lawsuits directly challenging military immunity to their claims. Since 2017, these legal challenges have unfolded in the midst of #MeToo, a movement that has galvanized public furor over military sexual assault and situated service member-survivors in the national spotlight.
Government officials have seemingly taken notice. From Congress to the Oval Office, recent years have witnessed formidable government-led attacks on the epidemic of military sexual assault. For example, the 2022 National Defense Authorization Act enacted compelling reforms, such as criminalizing sexual harassment and expanding notice requirements for service member-survivors. Last summer, President Joe Biden signed an executive order implementing “historic” changes to the military’s handling of sexual assault cases. Notably, the order removes prosecutorial power from military commanders — who have traditionally prosecuted sexual offenders sparingly — and instead gives independent prosecutors sole discretion to prosecute sexual violence offenses.
Even high-level military leaders have recently voiced concerns over the impact of sexual assaults. After reviewing a 2023 Pentagon study on the rising rate of sexual assault in military academies, Defense Secretary Lloyd Austin called the increase “disturbing and unacceptable” and urged academies to undertake more efforts to prevent sexual violence. Additionally, in 2021, then-Joint Chiefs of Staff Chairman Army Gen. Mark Milley opined that improving how the military handles sexual assault would address service members’ eroded trust in the military:
“That’s a really bad situation if the enlisted force — the junior enlisted force — lacks confidence in their chain of command to be able to effectively deal with the issue of sexual assault.”
Corroborating these concerns, a 2021 DOD report noted that a number of the service members interviewed expressed that they “had dreamt their entire lives of a career in the military and did not want to leave, even after experiencing sexual assault.” They nonetheless stated that, due to the military’s response to their assault, “many felt they had no choice but to separate.”
Given this level of disillusionment with the military and its response to sexual assaults, it is not surprising that the military is struggling to recruit new members. In 2023, the military experienced “crisis levels of low [military] recruitment,” and a Gallup Poll the same year found that public confidence in the military plummeted to a two-decade low. This is especially salient for young Americans, a group that largely came of age during #MeToo and a demographic from which the military primarily seeks to recruit. In fact, recent data cites the risk of sexual assault as a leading reason for young Americans’ hesitancy to enlist.
In 2022, Army Secretary Christine Wormuth affirmed the connection between low Generation Z enlistment and the military’s handling of sexual assault, stating:
“I do think there is information out there that Generation Z sees and they’re like, ‘Why would I want to be part of that?’ … I do think we have to both get the positive things out there for the Army, but also frankly … we need to show that we are doing something about sexual harassment and sexual assault in the Army.”
As the military faces ramped-up government efforts and increased public support for reform, it is long past time to rethink the Feres doctrine with respect to sexual assault claims. Improved legal remedies for service member-survivors would not only help individuals but also the military itself, which is reliant on steady enlistment. Particularly in the post-#MeToo era, where American support for sexual violence reform is strong and bipartisan, the military would benefit from broadened civil remedies for service member-survivors, changes that could bolster the confidence of those considering military service.
As a former military attorney has noted, the “door has been cracked” for military survivors to pursue sexual assault claims in the wake of the Spletstoser decision. Hopefully the courtrooms that have historically silenced military sexual assault claims will begin holding what survivors such as the young West Point cadet have long asserted: Sexual assault is not incident to serving one’s country.
Christine Dunn is chair of the Sexual Violence, Title IX and Victims’ Rights Practice Group for Sanford Heisler Sharp, a national civil rights law firm that represents men and women in various branches of the military in cases of sexual assault and harassment against the DOD and various branches of the armed forces. Jillian Seymour is the firm’s Tom Henderson Civil Rights Fellow. Elena Rauch is a Senior Legal Assistant at the firm.
