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, 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.
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.”
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.”