Inicios y avances de la sociedad de la información

Victims of sexual assault perpetrated by a Service member have no recourse against the U.S. government in civil proceedings.50 _{The Feres doctrine, first articulated in Feres v. United}

States,51 _{bars tort claims brought “for injuries to servicemen where the injuries arise out of or}

are in the course of activity incident to service.”52_{The doctrine rests on three grounds: “(1) the} distinctly federal nature of the relationship between the government and members of its armed forces; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure.”53

In Shearer v. United States, the Supreme Court confirmed that the most important rationale for upholding the Feres doctrine was the potential disruption of military discipline by civil suits.54 Thus, in addition to the three rationales outlined in the original Feres holding, the doctrine bars suits where (1) a civilian court may second-guess military decisions or (2) the plaintiff’s activities directly implicate the need to safeguard military discipline.55 _{Military leadership} remains supportive of the current doctrine.56 _{Even those who would prefer limits to the broader}

48 _{Legislation enacted in 2013 requires DoD to create a policy that a general officer or flag officer must review the}

circumstances of, and grounds for, the proposed involuntary separation of any member of the Armed Forces who (1) made an Unrestricted Report of a sexual assault; (2) within one year after making the Unrestricted Report of a sexual assault, is recommended for involuntary separation from the Armed Forces; and (3) requests review on the grounds that the member believes the recommendation for involuntary separation from the Armed Forces was initiated as reprisal for making the report. The general officer or flag officer must concur in the proposed involuntary separation of the member in order to separate the member. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 126 Stat. 1632 § 578.

49 _{DODDIRECTIVE 7050.06,MILITARY WHISTLEBLOWER PROTECTION 7 (July 23, 2007),}

available at

http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf (emphasis added).

50 _{This does not preclude criminal proceedings against perpetrators in civilian court. See Chapter 5, infra, at 46-47}

for a discussion about civilian law enforcement action and prosecution.

51 _{340 U.S. 135, 71 S.Ct. 153 (1950).} 52 _{Feres v. U.S., 340 U.S. 135, 146 (1950).}

53 _{Madsen v. U.S. ex rel. U.S. Army Corps of Engineers, 841 F.2d 1011, 1013 (10th Cir.1987) (quotation omitted).} 54 _{United States v. Shearer}

, 473 U.S. 52 (1985).

55 _{Jeffrey R. Simmons, Military Medical Malpractice, ARIZ.B.J., Feb. /Mar. 1988, at 22, 25.}

56 _{The Feres Doctrine: An Examination of This Military Exception to the Federal Tort Claims Act, 107}th _{Cong., S.}

Hrg. 107-977, 43 (2002) (response to written questions by RADM Christopher Weaver, Commandant, Naval

application of the Feres doctrine acknowledge that military decision making often requires leaders to make decisions based on a limited amount of information and time. Civil suits could open the door to Service members second-guessing the decisions of their leaders and threaten the military command structure.57

The Commission heard testimony from Attorney Rachel Natelson criticizing the Feres doctrine as applied to sexual assault victims.58 _{Attorney Bridget Wilson testified that the tradeoff for}

Service members is the “alternative compensation system,”59 _{i.e., the “ability to have military}

disability and veterans’ disability [benefits] related to their injuries” through the Veterans Administration.60 _{Wilson acknowledged, however, that it may not be a fair trade-off and that}

“there may be some overriding policy issues that would merit change.”61

Broad application of the Feres doctrine continues to be debated. Arguably, Congress did not intend access to veterans’ benefits to be a tradeoff or the exclusive remedy for Service members. In a dissenting opinion of a subsequent Supreme Court case, United States v. Johnson, Justice Scalia criticized the Court’s reliance on the existence of veterans’ benefits, arguing that the Court had held in the past that veterans’ benefits were not an exclusive remedy.62_{Furthermore, because veterans’ benefits are generally less extensive and more easily}

terminable than typical worker’s compensation benefits, Justice Scalia stated that the presence of veterans’ benefits as an alternative compensation system did not justify broad application of the Feres doctrine.63 _{To date, however, Congress has not clarified its intentions with respect to} whether Service members can bring civil claims against the military, and the Feres doctrine remains binding authority.

________________________ (cont'd from previous page)

District Washington) available athttp://www.gpo.gov/fdsys/pkg/CHRG-107shrg88833/pdf/CHRG- 107shrg88833.pdf.

57 _{Major Deirdre G. Brou,}

Alternatives to the Judicially Promulgated Feres Doctrine, 192 MIL.L.REV. 1, 55 (2007); see also Robert Cooley, Method to This Madness: Acknowledging the Legitimate Rationale Behind the Feres Doctrine, 68 B.U.L.REV. 981, 991 (1988).

58_{Natelson Statement at 2-3.}

59 _{Madsen v. United States ex rel. United States Army Corps of Engineers, 841 F.2d 1011, 1013 (10th Cir.1987).} 60 _{Wilson testimony, Briefing Transcript, at 77-78.}

61_Id.

62 _{United States v. Johnson, 481 U.S. 681, 697-98 (1987) (Scalia, J., dissenting). See also Pringle v. U.S., 208 F.3d}

1220, 1223-24 (10th Cir. 2000) (noting that courts have broadened Feres to bar any claim even slightly related to a

plaintiff’s status as a military member, even if the claim does not appear to relate to military decisions). Joining

Justice Scalia in dissent were Justices Brennan, Marshall, and Stevens.