Veterans as Victims of Military Sexual Assault: Unequal Access to PTSD Disability Benefits and...

I knew that the FERES DOCTRINE would be reviewed by someone as conflicting with sexual assault victim rights or other rights issues compared other federal agencies


9-1-2014
Veterans as Victims of Military Sexual Assault: Unequal Access to PTSD Disability Benefifits and Judicial Remedies
PART VI: ADDITIONAL JUDICIAL BARRIERS TO RELIEF
Service members seeking disability benefits for MST-related PTSD not only face unequal procedural remedies at the VA level, but veterans and military service members face another bar when seeking justice for the sexual assaults committed against them during service: the Feresdoctrine.
The Feres doctrine is a judicially-created scheme barring claims by military service members against the United States that are deemed to have occurred "incident to service. '123 The Feres doctrine has been publicly criticized in the past, with the New York Times writing ". . . 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."' 24 This doctrine exempts the United States government from liability for claims that it would otherwise be accountable for under the Federal Tort Claims Act (FTCA), which waives
the United States' sovereign immunity for claims against a government employee sounding in tort. Under the Feres doctrine, service men and women are essentially denied the same opportunities for recovery as their
125
civilian counterparts for similar injuries.
In 1950, the Supreme Court in Feres v. United States created an
exception to the FTCA.1 26 Feres involved three separate cases in which military officials were sued by the executors of estates of active duty military personnel for damages on actions grounded on negligence under the FTCA.127 The Court held that the FTCA was not meant to create new causes of action against the military, but instead was intended to right "remediless wrongs-wrongs which would have been actionable if inflicted
by an individual or a corporation but [are] remediless solely because their perpetrator was an officer or employee of the government." 128 In Feres, because each wrong was sustained by the plaintiffs during active duty and would not merit liability "under like circumstances" in private claims, the Court unanimously held that the suits were not justiciable. 129 The Court further articulated its view that Congress did not create the FTCA to handle
claims that would be based in local law for service-connected injuries and death, saying instead that federal law should govern such injuries.130
When an action does not lie in tort, a veteran who developed PTSD because she was sexually assaulted during active duty is denied the ability to sue the government because the FTCA, coupled with the Feres doctrine, has been increasingly liberally applied to claims against the government, including constitutional claims. Veterans who cannot obtain relief for VA disability benefits under the statutory scheme are barred by Feres from pursuing a remedy for constitutional claims.
The right to bodily integrity is a fundamental right protected by the Constitution. As noted by the Supreme Court, "[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity."13 ' Moreover, the right to bodily integrity has long been recognized. In Union Pac.Ry. Co. v. Botsford, the Supreme Court held that "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."1'32 Constitutional right violations that invade bodily integrity, such as rape and sexual assault, should never be considered merely incident to service, as the expansion of Feres suggests, and should instead enjoy a higher standard of review.133
In fact, it is difficult to imagine anything more personal and farther removed from military operations than sexual trauma. However, two main reasons have emerged since the Feres decision to justify why military plaintiffs receive limited access to constitutional remedies compared to the civilian population.
First, the relationship between the military and its service members is distinctively federal in nature.'34 The relationship between the military and its servicemen and women is unlike the generally immobile, traditional employer-employee relationship enjoyed in the civilian sphere. "This ... relationship is implicated to the greatest degree when a service member is performing activities incident to his federal service. Performance of the military function in diverse parts of the country and the world entails a '[s]ignificant risk of accidents and injuries."' 135 Furthermore, "where a service member is injured incident to service, that is because of his military relationship with the government, it 'makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the government to [the] serviceman'." '36 Under this rationale, however, it is difficult to imagine a scenario in which veterans' constitutional claims would vary greatly depending on the situs of the injury. Consequently,
courts have misplaced their concern regarding the government's relationship to its service men and women and have instead denied them the opportunity for relief for claims involving sexual assault.
Second, the Court assumes service members and veterans already have access to "generous statutory disability and death benefits... for service related injuries. " "' The Feres Court noted that the primary purpose of the FTCA was to provide remedies for those who had none.'3 8 Because service members and veterans already have access to an extensive disability benefits program, the Court in Feres saw no reason why the FTCA should provide them with additional remedy. 39 However, remedy for constitutional claims is not provided for in the Veterans' Benefit Act, 4 ° and, as discussed above, many veterans who suffer sexual assault are denied disability benefits for failure to prove a service-connection.
The Court has increasingly deferred to the military for the adjudication of military affairs, moving away from judicial review of the same. Most significantly, Chappellv. Wallace expanded the Feres doctrine beyond the realm of tort claims into most aspects of military service-related claims, including claims with constitutional implications.' 4 ' Chappell, while not a case of military sexual trauma, involved five African-American soldiers who alleged they were overlooked for "desirable duties" on the basis of race.'42 The plaintiffs in Chappellwere denied the right to sue the government for their constitutional tort claim, which, up until that point, waspermitted byBivens.BivensvSix UnknownNamedAgentsofFed.Bur. ofNarcoticsallowed claims against federal employees for damages when a
plaintiff's constitutional rights had been violated. 4 3 The court, in denying
plaintiffs' claims, articulated that even though suits for damages against
federal officials, while not expressly authorized by Congress, have been
allowed by Bivens in the past,144 such suits were not permissible when "special factors counseling hesitation" were at play.'45 These "factors"
include whether the FTCA applied in cases where the remedy could be
extended to a serviceman who suffered injury incident to service where, in
1'4 6
other circumstances, would be "an actionable wrong." The court then
used reasoning from Feres, in which, although a technical reading of the statute may appear to allow tort claims by a soldier against the United States for injuries acquired during service, Congress did not intend for the government to be subject to those claims by military personnel. 4 ' Most notably, the Chappell court held "[a]lthough this case concerns the limitations on the type of non-statutory damage remedy recognized in [constitutional claims], rather than Congress' intent in enacting the Federal Tort Claims Act, the Court's analysis in Feresguides our analysis in this case."' 48 Effectively, the Chappell court applied FTCA and Feres doctrine principles to a constitutional claim despite the fact that both the FTCA and Feres doctrine are frameworks for analyzing claims seated in tort.
The simultaneous expansion of Feres and narrowing of Bivens has irresponsibly endorsed judicial deference to military adjudication of military claims. "The result, decades later, is that a doctrine both created and expanded by the judiciary continues to serve as the basis for federal courts to abstain, more than a little disingenuously, from interfering in matters concerning military personnel."'4 9 As such, service men and women continue to be denied adequate remedies for myriad claims, most appallingly remedy for constitutional violations committed against them while in service to the United States.
Perplexingly, even the Department of Defense has admitted that MST degrades military effectiveness and integrity, saying:In the armed forces sexual assaults not only degrade individual resilience but also erodes unit integrity. Service members risk their lives for each other to keep fellow service members out of harm's way. Sexual assault breaks this important bond and tears apart military units. An effective fighting force cannot tolerate sexual assault within its ranks. Sexual assault is incompatible with military culture, and the costs and consequences for mission accomplishment are unbearable.15 °
It becomes clear that in the context of MST, the Feres doctrine increases military integrity nor effectiveness. Instead, the Feres
neither
doctrine has merely maintained the cycle of silence and failure to report intra-military sexual assaults.' 5 '
Automatic government immunity for constitutional rights violations against our service members and veterans under the Feres doctrine is iniquitous. Such practice neglects to contemplate the implications of excusing the military from any liability for constitutional rights violations. Complete immunity should only be granted by a congressionally-created doctrine that fully weighs the constitutional rights of our service members and veterans against the military policies underlying government immunity.'52 The Feres doctrine does not address such principles and should therefore either be greatly narrowed or rejected by the judiciary.
The Feres doctrine should be replaced by the amended judicial process proposed by the Military Justice Improvement Act of 2013 (MJIA), offered by New York Senator Kirsten Gillibrand as Senate Bill 1752, submitted to the Senate for consideration on November 21, 2013. As of the
Senate's 2013 Thanksgiving recess, this bill has not been considered. The MJIA moves the decision to prosecute crimes punishable by one year or more away from military commanders to an independent military prosecutor.15 3 This proposed Act does not remove the waiver of liability the federal government currently enjoys, but it does vastly improve the justice system for veterans seeking relief for sexual trauma experienced during service. The MJIA in theory removes the fear of reporting a female veteran
may have because she does not want to disrupt unit cohesion or because she feels uncomfortable reporting to a superior who may have been the aggressor. Because this Act only modifies the adjudication of crimes punishable by one year or more that are not uniquely military in nature, it gives victims of sexual assault an un-biased judicial process while simultaneously maintaining the delicate nature of military affairs. The MJIA allows an independent military prosecutor to decide whether the results of an investigation into an assault claim will go to trial and court martial. If the trial goes to court martial, instead of the victim's commander convening it, and independent Captain ("0-6") shall do so. The MJIA attempts to address both the reasons discussed above for under-reporting that arise under 38 C.F.R. §3.304(o, and consistent judicial deference to military adjudication of military affairs that the Feres doctrine has wrongly expanded over the years.
There are two separate and unequal systems of remedy available to victims of sexual assault: one for service members and one for civilians.154 However, on June 4, 2013, the House of Representatives passed H.R. 617, popularly known as the Ruth Moore Act of 2013 (the Act), and referred it to the Senate and to the House Committee on Veterans' Affairs. 55 Ruth Moore is a veteran who was raped multiple times by a supervisor during her tenure in the Navy, which she joined at age 18.156 Ruth Moore spent twenty-five years fighting for VA disability benefits for the PTSD she suffered because of MST.'57 The Ruth Moore Act would merge the two currently conflicting burdens of proof under 38 CFR § 3.04(0(3) and (5) for adjudication and distribution of disability benefits for PTSD resulting from military sexual trauma and combat. Generally, the Act would require the military to relieve service members and veterans of the burden of providing corroborating evidence that their in-service stressor actually occurred. The Act accomplishes this by stipulating MST as a sufficient in-service stressor for purposes of determining a service connection under 38 CFR § 3.04(f)(3), eliminating the requirement of corroborating evidence under 38 CFR § 3.04(f)(5), and for receiving disability benefits for a diagnosis of5
PTSD."' Furthermore, through the Act, Congress encourages the VA to
formally recognize the multitude of mental and physical disabilities that result from MST. 59 Such disabilities include "depression, anxiety, and other disabilities as indicated in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association." 6 ' This provision may help to alleviate the difficulty many veterans confront in trying to link their disability to MST. As discussed above, reactions to MST vary widely, and individuals may present symptoms of assault differently, making it tough for VA adjudicators to recognize.1"6' The Act would ensure equal treatment of veterans suffering from combat and MST under the PTSD service-connection regulation.
Most importantly, however, is the Act's embodiment of the changing ideology surrounding military adjudication of sexual assault claims. The Act amends 38 U.S.C § 1164 (b) to read, "[i]t is the sense of Congress that the Secretary of Veterans Affairs should update and improve the regulations of the Department of Veterans Affairs with respect to military sexual trauma... "162 This reflects an evolving and increasingly publicized call for the equal treatment of survivors of MST.1 63
CONCLUSION
The men and women who put their lives at risk to serve their country deserve to be treated with the utmost respect. That includes equal treatment of those attempting to claim disability benefits for PTSD. MST- related PTSD is far too common an occurrence within our military for its victims not to receive efficient claim adjudication equivalent to that experienced by veterans whose PTSD is the result of a combat stressor. Considering that female veterans constitute the fastest growing group of the
total veteran population, 164 the current disparity between the burdens of proof for combat and MST-related PTSD is unacceptable because it denies service members, a disproportionate number of whom are women, equal treatment under the law. Imminent passage of the Ruth Moore Act will help ease the claims process for MST victims, but it will not address the root of the issue. Veterans can never be fully compensated for constitutional violations against their bodies, and, even with a lighter burden of proof under VA regulations, the Feresdoctrine acts as another bar tojustice.