Feres Doctrine and the Obstacles to Justice for Military Rape Victims

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The Invisible War

Victims of sexual assault in the military face a mountain range of obstacles before, and if ever, they find justice. Their judge could potentially be their rapist’s best friend. He chooses the jury and has the power to “change the charge, reduce the sentence, or even overturn the verdict.” And in some cases, such as that of Jessica Hinves, featured in The Invisible War (airing May 13 on Independent Lens), her judge “didn’t have any legal education, background, or knowledge.”

Add the Feres doctrine to the list of hurdles. In 1950, the U.S. Supreme Court passed the doctrine in response to three cases of military members injured from causes unrelated to the battlefield — one man in a building fire from a malfunctioning heater, and two from botched surgeries. As such, they weren’t liable under the Federal Tort Claims Act, which at that time prevented individuals from suing the military for injuries on the battlefield. The military didn’t want to worry about getting sued for the very thing servicemembers had signed up for.

Watch View a Scene from The Invisible War on PBS. See more from Independent Lens.

Hannah Sewell, US Navy, and her father

Hannah Sewell, US Navy, and her father

But with Feres, the court expanded the Tort Claims Act to ban servicemembers for suing based on any injuries that “arise out of or are in the course of activity incident to service.” The Feres doctrine’s domain has stretched to prevent just about anyone from suing the military, including victims of rape. Servicemembers have been effectively blocked from civil courts, according to The Baltimore Sun.

“As strained and improbable as this analysis may be, its true danger has rested less in its immediate application to tort cases than in the foundation it has laid for a widely-metastasizing theory of intra-military immunity from any civil claim at all,” writes Rachel Natelson, Legal Director at Service Women’s Action Network, in Time magazine. “Over half a century later, Feres is not only a judicial invention, but, more alarmingly, the seed of an ever-increasing body of flawed doctrinal offspring.”

Kori Cioca, U.S. Coast Guard

Kori Cioca, U.S. Coast Guard

Judges have cited Feres to block the use of the Title VII of the Civil Rights Act, which protects workers from sexual harassment and assault.

“Meanwhile, the ‘incident to service’ provision routinely cited as an impediment best fixed by Congress is nowhere to be found in federal statute, making legislative reform something of an existential puzzle,” Natelson writes. “Caught in an endless game of hot potato, the Feres doctrine has eluded ownership for over half a century—if the courts won’t accept responsibility for their creation, then it’s time for Congress to rescue it from their hands.”

To reign in the Feres doctrine and protect rape victims, U.S. Sen. Kirsten Gillibrand told PBS Newshour, “We may want to look at if we can create some exceptions for victims of sexual assault.”

The Invisible War premieres Monday, May 13, 2013 at 10pm (check local listings).

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  • http://www.facebook.com/profile.php?id=100004057099332 Facebook User

    These are most unfortunate stories and events. Feres also protects lawyers from legal malpractice as well as unethical government lawyers. When I was on active duty, I was threatened by Army lawyer CPT Matthew Fitzgerald to do something against regulations resulting in losing over $50,000. Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. When I asked the top lawyer (now Lieutenant General Dana Chipman) for help, they appointed Fitzgerald’s previous boss/friend to investigate. I filed the same complaint with Fitzgerald’s state bar proving he lied more than 10 times. All thrown out of federal court due to Feres despite evidence. Fitzgerald got promoted to Major just to add insult to it all. The Oregon State Bar would have disbarred him for lying to the state bar.

    • J Scott

      Where is Mr. Fitzgerald now?

  • Richard L. Davis

    As a citizen and former member of the service I am appalled and disgusted with the military’s response to these outrages. And I am ashamed of them for ignoring an obvious crime. If male members of the services were similarly humiliated and injured their assailants would certainly be punished. The Congress needs to remedy this situation!

    • barbara

      Did you not watch the entire film? There were several men that were assaulted in the film, and their perpetrators received no punishment either. This all is just another symptom of how sick and rotten not only our entire federal government has become, but our entire country!! This country is in the TOILET!!!

  • sunniestmoon

    More power to the women who have given their lives up to serve and have been so violated for doing that. I hope their lawsuit is validated and perhaps have an effect on the us population as a whole. I saw the Miss Saigon and so much more needs to be done to remedy the problems of sexual attitudes and abuse in the military and in this country as a whole.

  • EvaV

    Here are six name for the WALL OF SHAME: DoD Sec. Chuck Hagel, Dr Kate Whitley, and Maj. Gen. Hertog; all at the Pentagon. Then there is Lt. Col. James Wilkerson, Lt, Gen. Craig Franklin and Lt. Col. Jeff Krusinski; all with the Air Force.

  • http://www.facebook.com/kathy.arnold.140 Kathy Arnold

    The Military REWARDS “Field Grade Officers” financially & socially for rape and pedophilia.
    “Since he is a Field Grade Officer, we will not even do an investigation” Provost Officer Abrams Complex Frankfurt Germany 1987. This was said after he quit laughing about the minor children ‘because they were not his children’

  • http://www.facebook.com/profile.php?id=546008273 Mark Legerski

    What was the name of the lawsuit?

  • Paula Miller

    I learned about the Feres doctrine many years ago (although, I didn’t know it was called that) when I was an undergrad. A friend, who’d just been discharged (honorably) from the Marines, told me that when you’re in the military, you basically have no civil rights the way civilians do, and you have no legal recourse to redress wrong-doings in the civilian court system. Right then and there I knew that I would never ever have anything to do with the military. I strictly pursued employment in civilian life and never considered military service for that very reason. I felt sorry for my ROTC friends because it was clear they hadn’t been fully informed as to what they’d signed up to and what they were really giving up as US citizens. I couldn’t understand how they could be so stupidly proud of the many ways they were about to get screwed over. Years later, my instincts were re-confirmed when a lawyer friend in the JAG corps lamented the broken system of military justice (injustice) and her endless frustrations trying to get adequate medical and health compensation for military personnel who’d been exposed to agent orange (yes, those case are STILL being “adjudicated”) among other countless health and medical issues. The universe of medical compensation nightmare stories is yet another chapter in this woeful tale of military injustice, administrative incompetence and mismanagement. Tales from colleagues who work(ed) at the Veterans’ Adminstration say the agency is, to borrow an appropriate military acronym, FUBAR. Our service people deserve so much better treatment and respect than what they’re getting. Right now, the thanks they get is merely lip service. The false gratitude is akin to being spat upon, especially in light of the mis-treatment they receive at the VA. I think that if more potential military recruits were better informed as to what they’re really sacrificing and how badly they’ll be treated when (and after) they join the service, there would be far fewer recruits, if any. Unfortunately, they’re dazzled by the recruitment ads that glamorize military service. Basically, they’re duped into service. Or they join up simply because there are no better employment options. Do we really want a military force that’s there because it’s the last best thing next to unemployment? It should be a choice that offers true career benefits, protections, and social service supports during and beyond their time in service, not an alternative to homelessness. It’s high time that rational exceptions to the Feres doctrine be carved out to preserve and recognize the basic civil rights of our service people. The government cannot go on treating our service people this way – it’s completely inhuman and speaks volumes of negativity about the deplorable state of our military system.

  • Paula Miller

    Another point I would like to stress is that, as noted by one of the interviewees seeking justice for these victims, until the spotlight (read: hot lights and rubber hoses) are on the perpetrators of these crimes, nothing will change. Too much post-crime focus on the victims and what they did or didn’t do right or wrong, is the incorrect approach to solving this deeply ingrained problem. The perpetrators of these criminal assaults must be identified and eliminated. I found it disturbing that no one would speak the names of the alleged perpetrators, or at least identify their ranks, locations, and term of service. At least that would be a start to pointing the spotlight of blame on the right people.

  • Jenn Smith

    It was good to read about you experience. I know that probably sounds crazy, but its good to hear another veteran who has gone through the same kind of thing. I was raped on ft campbell in 2011. After reporting it I began getting negative performance reviews and my career was ruined. Nothing happened to the abuser.
    Recently Ft campbell has been in the news for sexual assualt. The general went on and said he wants people to come forward and there is zero tolerance.Well saying it doesn’t make it so. Do you know of anyone else at Ft campbell that has dealt with something similar? Please hit me back if you have time.

  • Hypatia Leigh

    Nope. Nobody can sue any military group or member. SOOO illegal.

  • Be129

    Feminists,, Transferring these cases to feminist dictated civilian courts to insure maximum destruction of men.

  • Alba13

    I’m curious were you in the military at the time of the rape?

  • Lanette Angela

    I was in the Military from 1978-85..In 1983 while stationed at Ft. Lewis Wa. I was held captive in my off post apartment and sexually assaulted by a guy I had just started dating..He was a Corporal in the Motor pool where I was OJTing..On Monday morning when I reported to work I immediately went to the Motor Sergeant about what had happened.. His response was to have me transferred out to another detachment….Nothing ever happened to this animal….It’s been 30 years and I still remember it like it was yesterday..His name, his face, I got away from him by jumping from my bedroom window..I have tried to make a claim with the VA to no avail, as there is no record of any of this..I have been denied twice..My concern is, is this animal still out there doing this to other women…I was not the same person after this happened..I began drinking heavily..I was forced to ETS as I was not recommended for promotion to E-5…Much has happened since, I have been in many abusive relationships, homeless, angry, on medication for depression, and suicidal are just a few of my problems..Something has to be done..

  • J Scott

    So sorry to hear that