A recent decision from the U.S. Supreme Court not to review a former West Point cadet’s case alleging rape could lead to service members looking for Congress to change the law. In a lone dissent, Justice Clarence Thomas laid out the case for reasons why the court should revisit the Feres doctrine.
On May 3, the nation’s highest court declined a certiorari bid in a suit accusing the U.S. Military Academy of fostering a misogynistic culture. The suit alleges that this culture ultimately led to the alleged sexual assault of a female cadet who was drugged and raped by a fellow cadet in 2010.
Justice Thomas, in his dissent, said that the court should have taken up the case to revisit the Feres doctrine. The Feres doctrine is the result of a 1950 Supreme Court ruling that immunized the government from injury claims by way of military service. Justice Thomas, who has previously urged his fellow justices to revisit the Feres doctrine, said the court’s May 3 snub was “demonstrably wrong” and that it was time to “bid farewell” to the 70-year old precedent.
“At minimum, we should take up this case to clarify the scope of the immunity we have created,” Justice Thomas said. “Without any statutory text to serve as a guide, lower courts are understandably confused about what counts as an injury ‘incident’ to military service.”
The Feres doctrine has created Piecemeal legislation
Only in select situations do service members have recourse for non-combat injuries they sustained while serving in the military. This is evidenced through the passage of the SFC Richard Stayskal Military Medical Accountability Act of 2019 which allowed service members to file an administrative claim and pursue uncapped damages after medical malpractice from a military doctor.
Critics of the Feres doctrine believe that Congress should do away with the doctrine completely. However, they support Congress creating piecemeal legislation as a means to aid service members injured through non-combat situations. This may potentially be the case for sexual assault victims if the Vanessa Guillen Act is passed.
The Vanessa Guillen Act
If enacted, the Vanessa Guillen Act would create a separate military system to investigate claims of sexual assault and harassment outside of the chain of command.
Military officials are more receptive to addressing sexual misconduct in the military. According to reports, Gen. Mark Milley, chairman of the joint chiefs of staff, publicly stating that he would not object to taking the military sexual assault prosecution process outside the chain of command.
“We have to move the needle, that’s the bottom line,” he said.
Where to draw the line on Feres doctrine criticism
Supporters say that the military needs the Feres doctrine to properly function. While medical malpractice claims have an obvious need for compensation, other types of non-combat injuries aren’t so black and white. For example, creating recourse options for injuries that occur in training exercises could potentially impede the military’s ability to do its job.
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