As coronavirus continues to sweep across California and most of us shelter-at-home, National Guard members are deploying across the state to help. They’re running food banks, delivering test kits, and creating field hospitals. At the same time, they’re facing an epidemic of their own—military sexual assault. In the words of one investigator, sexual harassment in the California Guard is “commonplace.”
A bill introduced in California in February could change that. Senate Bill 1274 would empower service members to sue their assailants in civilian court. California should make this overdue change, and lead the way for other states to do the same.
Sexual assault in the military is spinning out of control. Between 2016 and 2018, the rate of sexual assault and rape jumped by 40 percent. For female service members, the situation is even more dire: instances of on-the-job sexual violence against women in uniform doubled during this timeframe.
As things stand now, victims looking for justice won’t find it in the courts. This is thanks to a U.S. Supreme Court decision known as “Feres” issued 70 years ago. Feres prohibits tort suits against the military for injuries considered “incident to service.” Astonishingly, in subsequent rulings courts have interpreted sexual assault to be incident to service and have used Feres as a bar against prosecution of assailants. As a result, survivors’ suits are being tossed.
Reversal of the Feres doctrine by the U.S. Supreme Court would go a long way in curbing military sexual assault. Surely, litigation, or even the threat of litigation, would motivate the military to try to tackle its sexual assault epidemic in earnest and would deter individual perpetrators.
We shouldn’t hold our breath for the court, though. It has repeatedly rejected requests to modify the doctrine despite strong criticism. Indeed, given the chance to chip away at Feres last summer, the Court refused to even hear the case.
This leaves the legislature. And currently, state level legislation is our best bet. The U.S. Congress isn’t promising because it has made the Feres doctrine a partisan issue, with key Republicans staunchly opposed to any change. This divisiveness came into full relief late last year, when Republicans killed a bill that would have modestly narrowed the Feres doctrine.
States, however, can take matters into their own hands, and open the door to state court. California has already taken a step in the right direction.
Currently, California law mirrors the Feres doctrine. That is, it permits sexual assault to be considered incident to service. As a result, perpetrators within the California National Guard, a state military organization of 22,000 service members, are effectively immune from civil actions.
California legislators are waking up to how wrong this is. Two months ago, California State Sen. Jerry Hill, D-San Mateo, introduced a bill that would close the state law loophole that stands between service members and justice. The bill would ensure military sexual assault victims can file suit in civilian courts, for impartial adjudication and access to robust remedies.
To open this critical pathway, the bill would make a simple amendment to the California Military and Veterans Code: it would have the Code state that sexual harassment or assault “shall be deemed not to be done in the performance of the member’s duties.” This should be obvious. Yet because of the Feres doctrine, for it to be law, it needs to be said.
California is a state of “firsts.” The first to legalize medical marijuana. The first to enact a comprehensive privacy law. And most recently, the first to issue a stay-at-home order in response to coronavirus. Let’s make it the first state to pull the thread that undoes the Feres doctrine across the country.
Service members are selflessly going out into the danger of the coronavirus crisis to help us access food, shelter, and medicine. The least we can do to thank them is give military sexual assault survivors access to the courts.
Dwight Stirling is the chief executive officer of the Center for Law and Military Policy. He is also a law lecturer at the University of Southern California and a JAG officer in the California National Guard. The views expressed are his own.
Rose Carmen Goldberg is a lecturer at UC Berkeley School of Law. Previously she represented military sexual assault survivors at Swords to Plowshares, a veterans rights organization in California. The views expressed are her own.
