I'm always interested in the intersection and overlap between military law and civilian statutes. So much of military jurisprudence involves what are normal employment decisions in the civilian sector. As the #MeToo wave sweeps across our culture, its impact on the military raises some interesting constitutional issues, as well as demonstrating the limits of the application of civilian legal concepts to military organizations.
Such is the case of Jane Doe v. Lieut. General Franklin Hagenbeck and Brig. Gen. William Rapp. The generals were, respectively, the Superintendent and Commandant of the United States Military Academy at West Point. The Jane Doe (and I am curious as to why a civil plaintiff is allowed to proceed under a pseudonym, even in this type of case) is a former cadet at USMA who alleges she was sexually assaulted there.
Doe alleges that she was raped in the spring of 2010. After she reported the assault to a psychiatrist, she was referred to USMA's sexual assault response counselor. Under the bizarre rules for service academy sexual assault reporting, she elected to file a restricted report, which preserved her identity as well as that of her attacker.
As an aside, this option is problematic. Officers have an obligation, legally and ethically, to report criminal conduct as they become aware of it. Doe should not have been allowed to shield the identity of her attacker, who presumably posed a threat to other women in the Corps of Cadets. Moreover, her unwillingness to allow a criminal investigation against her attacker, at least in my opinion, significantly undercuts the viability of the civil case that she filed three years later.
Instead of suing the cadet who assaulted her, Doe pressed forward with a suit against the Commandant and Superintendent on the theory that they had allowed some type of atmosphere promoting sexual assault (dare I say "rape culture"?) to pervade the Academy. The actual grounds for the lawsuit were a violation of her constitutional rights for due process and equal protection under the well-known Bivens standard, as well as a claim of for breach of the covenant of good faith and fair dealing against the United States and a federal tort claims act claim alleging negligent supervision, training, and several other counts.
I'll dispense with the District Court ruling and move directly to how the Second Circuit handled this. It is a fundamental principle of American jurisprudence that the courts keep their hands off the military with respect to military discipline and command structure. In cases where, as the Second Circuit noted, a plaintiff seeks to hold her superiors personally liable for money damages in connection with their decisions regarding the training, supervision, discipline, education, and command of service personnel at West Point, a court should avoid hearing the matter absent a clear Congressional authorization. Although the dissent here tried to characterize West Point as an educational institution rather than a military base--an argument that was as silly as it was factually unsupported--the Court dismissed Doe's claims.
Sexual assault in the military has gained a high profile in the last 25 years or so. But there is a separate system of military courts and process to deal with these issues that factors in necessary and uniquely military considerations. Notwithstanding the cultural avalanche embodied in the #MeToo
movement, its application to the military is and should be extremely limited. Based on this decision, and a host of others, courts will not prove receptive to claims alleging a culture of depravity that facilitates sexual assault in a military unit.
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