Senate Hearing Demonstrates Why Military Sexual Assault Survivors Must Be Empowered to Hold Their Assailants Accountable in Civil Court
Huntington Beach, California – The announcement by Senator Martha McSally of Arizona that she had been raped by her commanding officer while serving in the U.S. Air Force is another indication of why the outdated “Feres Doctrine” is doing irreparable harm to our military service members, according to Dwight Stirling, the CEO of the Center for Law and Military Policy (CLMP).
“We commend Senator McSally for her bravery and honesty to tell her story to the nation. But her story, unfortunately, is far from unique. Researchers estimate that well over half of all women serving in the military are sexually assaulted during their military careers,” said Stirling.
During a U.S. Senate hearing on Military Sexual Abuse, McSally shocked the nation when she revealed she had been raped while serving as a pilot in the U.S. Air Force. More telling was her admission that the military justice system seems broken. “Like many other victims, I felt like the system was raping me again,” said Sen. McSally. "During my 26 years in uniform I witnessed so many weaknesses in the processes involving sexual assault prevention, investigation, and adjudication. Victims mostly suffered in silence," she added. Sadly, said Stirling, McSally’s story is all too common in today’s military. Even as the reports of sexual assault in the military go up, experts think as many as 90% still go unreported.
“It is outrageous that sexual assault is characterized as an occupational hazard of military service,” said Stirling after the hearing. “The only way to fix the system is to empower the victims of military sexual assault to hold their assailants accountable in civil court.” Stirling leads a growing coalition of retired JAG officers, attorneys, military sexual survivor groups, and others, who believe today’s Senate Committee hearing is proof positive that despite attempts by the military to fix the problem, the situation is getting worse.
“It is embarrassing,” Senator Kirsten Gillibrand, D., New York, told top Pentagon officials testifying at the hearing, which was designed to explore the problems associated with military sexual assault. “We are going in the wrong direction,” she said, after citing statistics that indicate that the U.S. military justice system is delivering fewer sexual assault convictions every year.
Stirling, a former military prosecutor, will soon be the only legal scholar in the U.S. to receive a doctorate in the study of the Feres Doctrine, a judicial edict that he claims must be amended to finally curb the trend of military sexual assault. The doctrine, which has been interpreted to prevent service members from taking their claims of sexual assault to a civil court, is the primary driver of the problem, said Stirling. “As long as this policyimmunizes service members from civil liability when causing harm to each other, it is questionable whether service members will ever feel protected,” he said. “They protect us but when they are betrayed, we do not protect them.”
The fact that Sen. McSally did not feel comfortable reporting her rape indicates the severity of the hidden impact the Feres Doctrine on American troops. “Our troops don’t feel protected by their chain of command; so, they don’t report, and morale goes down,” he added. “We are seeing outdated policies being changed at every level of government and it is time to STOP FERES NOW,” said Stirling. “It is outrageous that the only Americans denied access to civil courts are those who wear the uniform of our military services. It must be changed, it’s the only way.”
Stirling said he admired Sen. McSally for her courage and commitment to this issue. “I look forward to working with McSally, Sen. Gillibrand and both committees of Congress,” he said, adding that he hoped to discuss the body of evidence he has gathered as a military prosecutor and as a legal scholar, and from the team associated with the Center for Law and Military Policy.
The last challenge to the antiquated doctrine failed in the U.S. Supreme Court 5-4. Following that opinion, the late Associate Justice Antonin Scalia wrote a scathing dissent urging Congress to change the doctrine.
About the Feres Doctrine
The Feres Doctrine was created by the Supreme Court nearly 70 years ago to insulate all varieties of intra-military harm from judicial review, including everything from negligence to intentional wrongdoing such as sexual assault. This lack of accountability lies at the heart of the military sexual assault epidemic. Since perpetrators cannot be sued—and because very few are charged criminally—there is very little incentive for perpetrators to change their behavior.
According to researchers, there are thousands, maybe hundreds of thousands, of service members suffering in silence. Senator McSally “stayed silent for many years” because she “didn’t trust the system.” Reports indicate that the abuser is usually in the survivor’s chain of command, as was the case for McSally. If survivors speak up, the perpetrator—or his friends in management—will retaliate. The discrepancy in power and the pressure not to report are as high, if not higher, than in the entertainment industry.
The CLMP believes every survivor of sexual assault deserves access to the civil court system. To deny a survivor their day in court because he or she was serving in the military at the time of the assault is unconscionable. As Senator McSally said, “I felt like the system was raping me all over again." Under the Feres doctrine, our government is effectively telling service members that although they have defended it with their lives, they do not have standing to file a lawsuit against their rapist.
Those at the CLMP agree with the Tenth Circuit Court of Appeal, which said: “When a soldier commits an act that would, in civilian life, make him liable to another, he should not be allowed to escape responsibility for his act just because those involved were wearing military uniforms at the time of the act. When military personnel are engaged in distinctly nonmilitary acts, they are acting, in effect, as civilians and should be subject to civil authority.”
The CLMP supports legislative change at both the state and federal levels. First, it would like to see state-level legislation enacted that affords survivors of sexual assault the right to sue their assailant in state court. Second, it recommends that Congress enable victims of sexual assault to file claims under the Federal Torts Claims Act (FTCA). By creating organizational liability, military managers would have a financial and professional incentive to eradicate this most vile and reprehensible form of intra-military harm, one that researchers have found affects up to 84% of female service members.
Changing the FTCA would also align the treatment of survivors serving in the military with survivors serving prison terms. Prison inmates who are sexually assaulted by guards can file claims under the FTCA, which gives prison officials a financial motivation to protect inmates from sexual abuse. It also reflects the extreme power discrepancy that exists in the prison setting, an atmosphere where guards exercise near total control over inmates
The same type of power imbalance and conditions exist in the military establishment. Discipline permeates nearly every aspect of a service member’s life and disobeying a superior’s orders exposes them to criminal liability. Therefore, placing the government on the hook for sexual misconduct is every bit as appropriate in the militarysetting as it is in the prison setting. Extending governmental liability would fix the troubling situation where prison inmates have more rights than service members, and where prison wardens have a greater structural incentive to stop sexual violence from ravaging the vulnerable than do senior military officials.
On December 15, 2018, the Center for Law and Military Policy was featured on the front page of the Los Alamitos News Enterprise. Written by David Young, here is an excerpt:
"Activist actress Alyssa Milano joined a powerful group of military legal scholars and former military prosecutors in Los Alamitos Saturday to express their collective support for a local non-profit organization seeking to reform what they consider to be obsolete military policies.
The mission of the Center for Law and Military Policy (CLMP) is to create legal policy solutions for troubling and lingering issues facing veterans and active-duty service members, said the nonprofit’s CEO Dwight Stirling.
Among the super-sized targets of the Center is a wholesale reform of the so-called Feres Doctrine, a comprehensive set of laws passed by Congress in the atmosphere of World War II that prohibits service members from seeking resolution of civil issues outside the military justice system. The CLMP hopes to tackle policy and legal issues to deal with homelessness, suicide, sexual harassment and others."
Read the full article.
On Tuesday, December 12, 2018, the Orange County Register ran an article about the CLMP's Inaugural Fundraiser - Sponsored by Rutan & Tucker, LLP. The article, written by Susan Christian Goulding, is entitled "TV Star, Activist Alyssa Milano to Headline Fundraiser for New Center for Law and Military Policy."
Here is an excerpt:
"Headquartered in Huntington Beach, the Center for Law and Military Policy focuses on the often difficult transition from military to civilian life, including unemployment and mental health issues. Los Alamitos resident Dwight Stirling, a veteran and USC law professor, founded the nonprofit earlier this year.
Stirling, who served for 20 years as a U.S. Army JAG officer, co-founded the Veterans Legal Institute five years ago. The Center for Law and Military Policy also takes aim at sexual assault against military women. In a recent speech at Chapman Law School, Stirling said that sexual assault victims serving in the military cannot file a lawsuit for injuries they sustain.
Milano, active in the “Me, Too” movement, will discuss sexual assault in civilian as well as military life."
For tickets or media inquires, contact Dallis Warshaw at firstname.lastname@example.org.
Los Alamitos, CA — The Center for Law and Military Policy (CLMP) is hosting a fundraising dinner on Saturday, December 15th at 5 pm at the Joint Forces Training Base located at 11206 Lexington Drive, Los Alamitos, California. In attendance will be special guest Alyssa Milano, a prominent leader of the #MeToo movement.
The CLMP is a nonprofit think tank dedicated to strengthening the legal protections of those who serve our nation in uniform. Led by Dwight Stirling, a USC law professor and reserve JAG officer, the CLMP seeks to change policies that harm every day service members. The CLMP’s mission is to understand and fix the systemic problems within the military establishment that lead all too frequently to homelessness, mental health challenges, and suicide.
One of the CLMP’s primary initiatives is to empower survivors of military sexual assault, giving them greater protections within the legal system. Currently, a judicial policy called the Feres Doctrine, stemming from the Supreme Court case of Feres v. United States, prohibits service members from accessing the civilian court system when their injuries are “incident to service.” Remarkably, the judiciary has held that sexual assault is incident to a service member’s employment, a risk factor that goes along with their job. As a result, the judiciary has said that military sexual assault survivors do not have standing to sue for the physical and emotional injuries that stem from rape and other acts of sexual violence.
The CLMP believes that military sexual assault survivors should be afforded their day in court. It is both irrational and immoral to characterize sexual assault as incident to military service. Such a policy is out of alignment with elemental American values and the CLMP is working to change it.
On October 12, 2018, Dwight Stirling was quoted by NBC News. Stirling, the CLMP's CEO and Founder, is a national scholar on the Feres Doctrine. The article pertained to the tragic case of Navy LT Rebekah Daniels, who died during childbirth due to the indisputable malpractice of Navy medical staff. Her husband's lawsuit against the Navy was dismissed pursuant to the Feres Doctrine, which prohibits all suits filed by service members.
Stirling, a law professor and reserve JAG officer, was asked about how jurists and politicians see the Feres Doctrine. “The Feres doctrine does not divide the court members on your standard ideological grounds,” Stirling said. “It tends to scramble the typical calculus.”
Read the article on the NBC website.
Huntington Beach, California – In a positive move for current and former service members, a new California-based think tank has been launched, the Center for Law and Military Policy (CLMP). Led by Dwight Stirling, a USC law professor and reserve JAG officer, the CLMP aims to improve life for the nation’s protectors by fixing the deep-seated problems that lead all too often to homelessness, unemployment, and suicide.
“It’s not enough to help service members and veterans with their individual legal problems,” Stirling said, who co-founded and led the Veterans Legal Institute for many years. “What is needed now is structural change, improvements to the systemic problems that continue to plague those serving our nation in uniform.”
Fixing the “systemic problems” is at the heart of the CLMP’s mission.
“It’s remarkable how few protections are in place for rank and file service members,” observed Dallis Warshaw, the CLMP’s Vice President for Policy. “While these men and women risk their lives to keep America free, their own rights are often ignored or disregarded altogether.”
The CLMP conducts conferences and other educational events, including a symposium on military sexual trauma to be held on October 12 at Chapman Law School. The CLMP also publishes the Journal of Law, Policy & Military Affairs, a scholarly journal, and produces a podcast about the civil-military gap called “A World Apart.”
“Serving in uniform should not make a person a second-class citizen,” said Colonel (R) Carl David, a CLMP board member and Director of Columbia College of Missouri’s Los Alamitos campus. “Ensuring service members are protected is a moral duty of all Americans and I’m honored to be a part of this remarkable new organization.”
Along with Stirling, Warshaw, and David, the CLMP’s Board of Directors includes Colonel (R) Bob McFetridge, SSgt (R) Jen Burch, Charlotte Clymer, Lieutenant Colonel (R) John Wallace, Grant Frazier, Colonel Mike Cardoza, Laura Riley, Admiral (R) Steve Briggs, and Captain (R) Allison Jaslow.
Copyright © 2018 Center for Law and Military Policy - The CLMP is a 501(c)(3) nonprofit organization. EIN - 83-1587085