Woman cannot sue West Point over sexual assault

The Court of Appeals has ruled that an anonymous plaintiff cannot sue West Point for sexual assault. This is the second time the plaintiff has brought her case to the Second Circuit. She lost the first time under her Bivens claim, and she loses again under the Federal Tort Claims Act.

The case is Doe v. United States, a summary order issued on May 29. Plaintiff alleges that a male cadet sexually assaulted her and that the was West Point's fault in the way the institution handles (or fails to properly handle) such incidents.

There are certain things we cannot do in American society. Suing the military is one of them. There are exceptions to the Feres doctrine, but the Feres rule, set down by the Supreme Court in 1950, makes it almost impossible to do so. In her Bivens claim (which is the federal counterpart to Section 1983 constitutional claims against state and municipal defendants), the Court of Appeals applied the doctrine of intra-military immunity in holding plaintiff could not recover any damages. This time around, she seeks relief under the FTCA. Same result.

Feres holds that "the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Under Feres, cases cannot proceed if "commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions[.]" What dooms the FTCA claim is what doomed her Bivens claim: the Court of Appeals says her allegations "center on the implementation and supervision of allegedly inadequate and harmful training and education programs relating to sexual assault and harassment," as well as West Point's alleged failure to provide properly for the report and investigation of sexual assault claims, and for the support of cadets who are assaulted. It looks like anything relating to West Point's failure to provide for a safe environment for female cadets cannot be litigated under the FTCA.

Plaintiff tries to get around this by arguing that her suit relates to her role as a West Point student and not as a soldier. Good argument, but it will not work. The Second Circuit rejected that argument on her Bivens claim a few years ago. In the end, even as a student, she "was a member of the military, subject to military command at all times, who was at West Point for the purpose of military instruction."Also, "her education was inextricably intertwined with her military pursuits."