The End of Feres: How the 9th U.S. Circuit Court of Appeals May Change Everything

According to SC Times, the Court of Appeals recently ruled that the Feres Doctrine cannot restrict an Army colonel from filing lawsuits against a former Air Force general for sexual assault. The three judges on the court stated that the plaintiff could file a lawsuit because the sexual assault “could not conceivably serve any military purpose.”

This ruling was made by the 9^th U.S. Circuit Court of Appeals and it could change everything for many military members who have been sexually abused while serving.

What is the Feres Doctrine, and how does it affect sexual abuse claims?

The Feres Doctrine is a legal document that prevents active military personnel from filing a civil lawsuit against the government for the injuries they suffer while serving in the military. The doctrine received its name fromFeres v. United States Supreme Court, which took place in 1950. As a result of this legal doctrine, military service members could not sue in civil court for injuries “suffered incident to service.” This had the long-term effect of making it impossible for military servicepeople to sue for their sexual assaults, abuse, or rapes.

But things started to change in 2020 with the National Defense Authorization Act. That year’s authorization, as the SC Times explains, “resulted in the first crack in the Feres Doctrine because it allows victims of ‘medical malpractice of a Defense Health care provider’ to sue for civil damages.” Why? Because an act of medical negligence, and the effects it caused, were not “incident to service.”

In August 2022, the Court of Appeals heard Kathryn Spletstoser v. John Hytyen. In this case, Kathryn Spletstoser, a former Army Colonel, stated that John Hyten, a former Air Force General, sexually assaulted her. While the Feres Doctrine has always protected perpetrators against these claims, the Appeals Court found no such protection under Feres, denying the defense’s motion to dismiss. From the ruling:

The panel applied the factors developed in Johnson v. United States, 704 F.2d 1431, 1436-39 (9th Cir. 1983), and held that the Feres doctrine did not bar the claims raised by plaintiff at this stage of the proceedings…. It is unimaginable that plaintiff would have been “under orders” to submit to Hyten’s sexual advances, or that she was performing any sort of military mission in conjunction with the alleged assault. Rather, plaintiff, like the plaintiffs in Johnson, stood in exactly the same position as a civilian. The asserted tortious act (sexual assault) did not involve a close military judgment call, did not further any conceivable military purpose, and could not be considered incident to military service. After considering the Johnson factors and other cases analyzing the Feres doctrine, the panel agreed with the district court that plaintiff’s action was not barred by the Feres doctrine at this stage, and therefore the motion to dismiss was properly denied.

In short? Feres cannot apply because no one could possibly assume that being raped or assaulted is “incident to service” for one’s country.

How prevalent is sexual abuse in the military?

While many military branches have tried to keep their sexual abuse cases under wraps, there have been several different claims of sexual abuse in the military in recent years. CBS News reported that sexual assault reports in the United States military increased by 13 percent in 2021. Sexual assault instances have also increased. For example, close to 40,000 service members mentioned that they had experienced non-consensual sexual assault in a confidential survey in 2021, which was almost double the amount of service members who stated this in a survey in 2018. There have also been increasing rates of sexual assaults at military academies across the United States.

A report released by the Military Times contradicts the CBS report by explaining that people believe that reports of sexual abuse are increasing, but the math simply does not indicate this. Instead, the report claims that there are more sexual assaults happening in the military, and less people reporting them. So while military sexual assault reports may be making headlines across the country more and more, the number of instances does not compare to the number of reports. It is estimated that over eight percent of women in the military experienced non-consensual sexual acts in 2021 alone, which was the highest percentage that the military has seen in almost two decades. However, many of these individuals never come forward.

Why sexual abuse victims in the military choose not to report their abuse

There are many reasons why victims of sexual abuse in the military may choose not to report. Generally speaking, most civilians don’t report acts of assault or rape either. For servicemembers, though, the stakes are seemingly different.

Along with the fear of not being believed – a common thread in all sexual assault cases – servicemembers are acutely aware that there is little chance of justice. In a special 2021 report by the New York Times, Pfc. Florence Shmorgoner explained that even after she reported her abuse, and had obtained a confession from her abuser, nothing happened. “She was floored when a Marine commander and the N.C.I.S. recommended against a court-martial. They told her that, despite the confession, her assailant’s character witnesses had said good things about him and there was no physical evidence to prove that a rape had happened.”

There is also a real fear of retaliation. Per the Time’s Up Foundation, “73% of retaliation reports [stemming from reported acts of rape or assault] alleged that retaliators were in the reporter’s chain of command” and “the majority of survivors were harassed by someone in their chain of command.”

Finally – and we think this is critical – we are talking about men and women who are tasked with defending our country, and who are expected to treat one another as family; service is a brotherhood, or so we often hear. Reporting an act of abuse, assault, rape, or harassment may feel like an act of betrayal, even though the real betrayal was the abuse itself.

As you can see, there are many reasons why a sexual assault victim may choose not to report their abuse. This is why the decision by the Court of Appeals is so important. By giving survivors a real chance at justice, we can finally hold perpetrators accountable.

What exactly does the ruling by the 9^th U.S. Circuit Court of Appeals mean going forward?

That quest for justice has already begun. In 2020, Vanessa Guillen, a female soldier for the U.S. Army, was murdered on a military base in Texas. Prior to her murder, she told her family that she was being sexually harassed and assaulted while working at the base, and the Army confirmed this. The day after the U.S. Circuit Court of Appeals ruled that a sexual assault does not serve any military purpose, her family filed a lawsuit against the government for $35 million in damages. The lawsuit seeks to prove that Guillen was sexually assaulted.

There is a long battle ahead, but it is a worthy one. Taylor & Ring is ready to fight by your side.

If you have been sexually abused in the military, the Los Angeles sexual abuse attorneys at Taylor & Ring are here to fight for the justice you deserve. We prioritize your wellbeing and safety, ensure that you remain comfortable, and provide you with peace of mind. Our team knows and understands the trauma you have experienced from this abuse, and we will do whatever it takes to stand up for your rights and fight for the compensation you are owed. Call our office or submit our contact form to schedule a consultation today.