[Editor’s note: The issue of violence committed against women in the U.S. military, including sexual abuse, and the military’s frequently inadequate response, has been much in the news of late. Click here to read a good and recent summary by reporters David C. Adams and Estephani Cano for Univision News.
This past weekend, protesters gathered at the State Capitol Building in Raleigh and in at least two other locations to shine a light on the murder of Vanessa Guillen – a 20-year-old Army private stationed at Fort Hood in Texas who was murdered after telling friends and family about sexual harassment she had experienced.
One of the speakers at Saturday’s event in Raleigh was Erin Scanlon, an Army veteran and military sexual assault survivor who has become an advocate for reform. The following essay by North Carolina NOW president Gailya Paliga details some of Scanlon’s story and its implications. You can also read another op-ed that Paliga authored on the Guillen tragedy for the Faytetteville Observer by clicking here.]
The legal twists and turns in a rape case involving a soldier stationed at Fort Bragg clearly demonstrate that the U.S. Army is still failing in its responsibility to investigate and prosecute sexual harassment and assault charges from their members.
Officials at Fort Bragg interfered in Capt. Erin Scanlon’s military sexual assault case in many ways. They took over the case and manipulated the result. Months after her alleged rapist was acquitted, Scanlon filed a claim against the Army on grounds that Fort Bragg officials mishandled her case. But the military denied the claim, saying members of the military cannot sue the federal government because of the controversial “Feres Doctrine.” Feres, as it’s known for short, prevents people who are injured as a result of military service from successfully suing the federal government under the Federal Tort Claims Act. Since then, Scanlon has left the Army and has become an outspoken advocate for military oversight.
Capt. Scanlon reported she was raped by another Army service member when she was an officer in Fayetteville in September 2016, and then was unfairly treated by the military establishment. Her support system — both clergy and Special Victim Counsel — kept changing. The trial was moved from civil court to military court just a week before trial was to start. Scanlon was not allowed to watch the trial, only to testify. Her Army-appointed Special Victim Counsel was ordered to testify against her during the trial. She still doesn’t have access to all that happened. In June 2018, a military jury acquitted the accused soldier.
(You can read more details of Scanlon’s case in this January 2020 story by Ella Torres of ABC News: “Army officer says she was raped, but Supreme Court ruling blocks her from justice.”)
Little recourse: controversial “Feres doctrine”
In April 2019, Scanlon filed a $10 million claim for damages under the Federal Tort Claims Act, alleging “negligent investigation and handling of sexual assault case by Fort Bragg.” Ultimately, however, the claim was rejected under the controversial “Feres doctrine.” It stems from the 1950 case Feres v. United States, in which the U.S. Supreme Court ruled that servicemen who had handled highly radioactive weapons fragments from a crashed airplane were not permitted to recover damages from the government.
Dwight Stirling, CEO at Center for Law and Military Policy and a leading scholar on the Feres doctrine, explained for ABC: “Feres limits any sort of lawsuit against the U.S. by a member of the military who was hurt in some capacity while on active duty.” Read in such a way, the Feres doctrine prevents claims against the military for sexual assault cases — a reality that leaves some military members feeling that they can rape with impunity.
Attorney Natalie Khawam is fighting to make sexual assault an exception to Feres. Khawam won a different battle involving Feres, when she helped to secure a provision in the Military Medical Malpractice Act of 2019, which Congress passed in December 2019 as part of the annual National Defense Authorization Act. That new provision makes clear that Armed Service members and their next of kin can sue the Department of Defense for their injuries caused by improper medical care. While service members still can’t sue in federal court for damages caused by medical malpractice — the claims must be handled administratively — the changes still represent a significant improvement. Early drafts of the Richard Stayskal bill had included military sexual assault, as well as negligence claims, but they were later removed.
Sexual assault: a growing problem in the military
According to a 2019 report on Fiscal Year 2018 from the Department of Defense, 6.2% of active-duty women and 0.7 % of active-duty men reported some form of sexual assault. The report says 24.2% of active duty women reported experiencing sexual harassment. And in 2018, about 1 in 3 service members reported an incidence of sexual assault.
The protocols to report sexual harassment and assault are nonsensical and ineffective. Many victims don’t bother to file, fearing retribution. The authority to press charges lies not with the victims, but their command. The case of Capt. Scanlon shows how a clear case of rape is waylaid, and exposes heavy-handed manipulation the military can take to interfere with a sexual assault case.
The bottom line: Sex crimes in the military must not be tolerated and investigations involving military personnel must be overseen by an independent third party if they’re going to to work. Even when forming our government, the Founding Fathers knew to separate the government into three branches in order to maintain proper checks on (and balances of) power. The lack of these checks and balances is what allows the Department of Defense to avoid accountability and sexual assaults to run rampant.
- “Appendix B: Statistical Data on Sexual Assault,” 2018, Sexual Assault Prevention and Response (SAPR) Report of Fiscal Year 2017.
- “Military Can No Longer Avoid Medical Malpractice Claims,” 12/19/20, US News.
- “The Long And Difficult Road To Changing The Feres Doctrine,” 12/29/19, The Khawam Law website.
- “Army officer says she was raped, but Supreme Court ruling blocks her from justice,” 1/21/20, ABC News.
- “The Feres Doctrine Denies Rights to Sexual Trauma Victims – How One Soldier Is Fighting It,” 4/26/20, Coffee or Die blog,
- “‘That’s my justice’: Former Fort Bragg soldier, sexual assault survivor advocates for military oversight,” 7/1/20, ABC News.
- “Feres Doctrine and the Obstacles To Justice For Military Rape Victims,” 5/9/13, PBS.