May 17, 2024

Why the Military Should be Held Legally Accountable for the Prevalence of Sexual Assault in its Ranks

Christine Dunn, Partner at Sanford Heisler Sharp

I represent sexual assault survivors in their civil lawsuits against individual perpetrators, but also against the institutions that allowed the victimization to occur in the first place. On behalf of my clients, I’ve pursued cases against schools, religious orders, companies, and property owners for failing to take reasonable measures to keep people safe. In my experience, institutions don’t usually change until they’re forced to. Holding institutions legally accountable is one of the most effective ways to create systemic change that has the potential to keep future generations safer.

But what happens when a powerful institution is immune from legal challenges? How can you force such an institution to change when there’s no legal accountability?

Historically, that’s been the case with the United States military. For the most part, military service members who are injured have been barred from bringing legal claims against the military. The reason for that dates back to a 1950 United States Supreme Court case titled Feres v. United States, 340 U.S. 135 (1950). In Feres, the Supreme Court held that service members cannot bring claims against the government when the injury occurred “incident to military service.” Over the years, “the Feres doctrine” has been interpreted broadly to include almost anything that happens to a service member, even if it has little or nothing to do with the performance of military duties.

Taken to its most egregious extreme, the Feres doctrine has been used to bar service members from seeking redress for sexual assault. For example, in Doe v. United States, 815 Fed. Appx. 592 (2d Cir. 2020), a female West Point student was violently raped by a classmate. The school also failed her in numerous ways, including a lack of adequate policies and procedures to prevent sexual assault. When she later tried to bring a negligence lawsuit against West Point, the judge dismissed her case, finding that the Feres doctrine prevented her from bringing claims. It defies logic that being sexually assaulted can be “incident to service” but, over and over, courts have reached similar conclusions.

If a civilian woman is sexually assaulted and her employer played a role in allowing it to happen, she can seek justice and legal accountability by bringing a lawsuit against her employer. But if that same woman is an active-duty service member and it was one of the branches of the military that negligently failed to protect her, she has no legal recourse. Military service members lay their lives on the line to protect our country, but they aren’t given the same legal rights as civilians. This dichotomy violates my fundamental sense of fairness and justice.

To make matters worse, sexual assault in the military is rampant and continuing to increase. According to U.S. Department of Defense Annual Reports, in 2020 service members reported 6,290 incidents of sexual assault, a more than 120% increase from the number of reports in 2015. And, by 2022, the number of reported incidents of military sexual assault had risen to 8,942. Given that the majority of sexual assaults go unreported, the actual number is likely far higher. More and more service members are experiencing sexual assault, yet their ability to seek justice continues to be limited.

In the civilian world, institutions routinely face lawsuits for failing to adequately prevent sexual assaults. At some point, it makes good business sense for the institution to make changes and do better, rather than face additional lawsuits. If the Feres doctrine is overturned – at least with respect to sexual assault claims – the military will finally be held accountable for its role in allowing sexual assault to proliferate in its ranks. More needs to be done to protect our service members from sexual assault. Allowing military sexual assault survivors to seek redress is an important step in that direction.

To learn more about this issue, register for the 2024 Crime Victim Law Conference, May 20-22 in Portland, OR. In-person and virtual registration available More information is available here: