The Feres Doctrine, Title IX, and Institutional Accountability for Sexual Assault in Military Service Academies

By Adriana Snedaker

The United States is home to five military service academies: the United States Military Academy[1], the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy, and the United States Merchant Marine Academy.[2] These academies allow students, called cadets,[3] to earn an undergraduate degree while preparing for service in the United States military.[4] Over time, instances of sexual assault within the service academies have grown, with the academic year 2021–2022 bringing a total of 206 reports of unwanted sexual contact.[5] This figure represents the highest number ever recorded, with an average of one in five women across the service academies experiencing unwanted sexual contact.[6] However, sexual assault is not a problem unique to the military—it is estimated that one in four to one in five women experience sexual assault during their time in college.[7] While some factors that contribute to incidents of sexual assault within service academies are also problems in civilian universities, such as excessive alcohol use, service academies face a unique set of challenges partly due to their lack of institutional accountability.

The Feres doctrine, established in the 1950 case of Feres v. United States,[8] bars active–duty service members from suing the federal government for Federal Tort Claims Act violations.[9] In Feres, the Supreme Court consolidated three cases where the plaintiffs, active duty service members, died due to the negligence of other service members.[10] Citing the “distinctively federal” relationship between the government and military, the Court held that the government cannot be held liable under the Federal Tort Claims Act for injuries that “arise out of or are in the course of activity incident to service.”[11]Although the activity must be incident to military service for a claim to be barred, Feres never explicitly defined what “incident to military service” means.[12] Instead of analyzing possible claims on a case–by–case basis, federal courts have applied the doctrine as a “broad bar of all [Federal Tort Claims Act] suits brought by military personnel,” including cadets.[13] Because of this, courts have used the Feres doctrine to bar claims brought against the military for its negligence surrounding instances of cadet sexual assault.[14] For example, in Doe v. United States, the Plaintiff was sexually assaulted by a fellow cadet during her time at the United States Military Academy.[15] She brought a Federal Tort Claims Act against the United States based on the academy’s allegedly inadequate sexual assault policies.[16] Although the Plaintiff framed her lawsuit “as related to her role as a student and not her role as a soldier,” the court determined that her injuries were incident to her military service because she “was a member of the military, subject to military command ‘at all times,’ who was at [the United States Military Academy] ‘for the purpose of military instruction.’”[17]

            The Feres doctrine isn’t the only challenge to institutional accountability for service academies; they are also exempt from Title IX.[18] Title IX, passed in 1972, prohibits discrimination based on sex in schools that receive federal funding.[19] Since its passing, “courts have interpreted [Title IX] to require schools to protect students from . . . sexual violence,” including sexual assault and rape.[20] Title IX requires universities to take immediate steps to address reported instances of sexual violence, provide support services to victims of sexual assault, and establish procedures for handling complaints of sexual assault.[21] Importantly, Title IX creates an avenue for victims of sexual assault to legally hold their university accountable for the mishandling of sexual assault cases.[22]

            Upon its enactment, Title IX enumerated multiple exceptions, including the service academy exception: Title IX “shall not apply to an educational institution whose primary purpose is the training of individuals for the military service of the United States.”[23] Notably, Title IX was passed in 1972, three years before the service academies began to admit women.[24] Despite the admission of women beginning in 1975, this Title IX exemption remains in place to date. The modern argument for the exemption is that “military academies are different enough from colleges that it doesn’t make sense to put them under the same umbrella.”[25] While that may be true, cadets are left with virtually no method to hold their service academy accountable for the mishandling of sexual assault cases. Due to the Title IX exemption, no statute creates a cause of action for the mishandling of cadet sexual assaults [26], and the Feres doctrine bars any claim brought under the Federal Tort Claims Act.[27]

            While long-awaited changes have recently been made to the handling of sexual assault cases within the military and its service academies,[28] efforts should be focused on increasing institutional accountability through a modification of the Feres doctrine to allow Federal Tort Act Claims to be brought against service academies for their handling of sexual assault cases. Though a judge-made doctrine, Congress has the authority to modify the scope of the Feres doctrine through its annual National Defense Authorization Act; in the Fiscal Year 2019 National Defense Authorization Act, Congress authorized service members to bring medical malpractice claims under the Federal Tort Claims Act.[29] Like instances of medical malpractice, sexual assault among cadets does “not . . . conceivably serve any military purpose.”[30] As such, Congress should utilize the National Defense Authorization Act to “implement a bright–line rule that sexual assault is not incident to one’s service.”[31]

Recently, in Spletstoser v. Hyten, the Central District Court of California held that a service member’s sexual assault was not incident to her service.[32] In Spletstoser, the Plaintiff, an active–duty service member, attended the Reagan National Defense Forum, where she stayed in the same hotel as Hyten, another service member.[33] On the evening of December 2, 2017, Hyten entered Plaintiff’s hotel room, where he sexually assaulted her.[34] Plaintiff sued Hyten along with the federal government, who moved to dismiss the claims based on the Feres doctrine.[35] The district court denied the motion, and the Ninth Circuit affirmed, holding that “no matter how expansive the Feres doctrine has become, it does not encompass the facts of this alleged sexual assault.”[36] Despite this unprecedented holding, the court is right—“one would be hard pressed to conclude that a tortious sexual assault is in any way incident to ‘a decision requiring military expertise or judgment.’”[37] Allowing cadets to pursue civil actions against their academies would create institutional accountability by holding the academy liable for the negligent handling of sexual assault cases in a similar way that Title IX does, without having to expand the scope of Title IX to include military service academies. After all, “women who choose to serve and those who dream of service deserve a foundation of law and policy, an infrastructure, and offender and system accountability.”[38]

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[1] The USMA is the academy associated with the Army, more commonly known as West Point.

[2] The 5 U.S. Military Academies, Gain Serv.Acad. Admission, https://www.gainserviceacademyadmission.com/service-academies/ (last visited Feb. 28, 2024).

[3] Students at the USNA are called midshipmen, but here, the term “cadets” is used to encompass students at all service academies.

[4] Gain Serv. Acad. Admission, supra note 2.

[5] Id.

[6] Clare Hymes & Eleanor Watson, Instances of sexual assault at military service academies highest since at least 2006, DOD says, CBS News (Mar. 10, 2023, 5:50 PM), https://www.cbsnews.com/news/military-academies-sexual-assault-reports-2021-2022-school-year/.

[7] See Charlene L. Muehlenhard et al., Evaluating the One-in-Five Statistic: Women’s Risk of Sexual Assault While in College, 54 J. of Sex Rsch. 549, 549 (2017); David Cantor et al., Report on the AAU Campus Climate Survey on Sexual Assault and Misconduct, The Ass’n of Am. Univ. (Jan. 17, 2020), https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/Revised%20Aggregate%20report%20%20and%20appendices%201-7_(01-16-2020_FINAL).pdf.

[8] Feres v. United States, 340 U.S. 135 (Dec. 4, 1950).

[9] Feres Doctrine, Save Our Servicemembers, https://saveourservicemembers.org/feres-doctrine/#:~:text=In%20December%201950%2C%20the%20U.S.,from%20activities%20incident%20to%20service (last visited Feb. 28, 2024).

[10] Feres, 340 U.S. at 138.

[11] Id. at 146.

[12] See generally id.

[13] Kaitlan Price, Comment, Feres: The “Double-edged Sword”, 125 Dickinson L. Rev. 745, 757 (2021) (citing Andrew D. Popper, Comment, Rethinking Feres: Granting Access to Justice for Serivce Members, 60 B.C. L. Rev. 1491, 1497 (2019)).

[14] See, e.g., Doe v. United States, 815 Fed.App’x. 592, 593 (2nd Cir. 2020).

[15] Id. at 593.

[16] Id.

[17] Id. at 595.

[18] Exemptions from Title IX, U.S. Dept. of Educ. (Mar. 8, 2021), https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/index.html#:~:text=Schools%20training%20individuals%20for%20military,20%20U.S.C.

[19] 20 U.S.C. §1681(a).

[20] Title IX, Rape, Abuse & Incest Nat’l Network, https://www.rainn.org/articles/title-ix (last visited Feb. 28, 2024).

[21] Id.

[22] Id.

[23] 20 U.S.C. § 1681(a)(4).

[24] Jake New, Still Exempt From Title IX, Inside Higher Ed (Aug. 11, 2014), https://www.insidehighered.com/news/2014/08/12/forty-years-after-first-female-cadets-service-academies-still-exempt-title-ix.

[25] Id.

[26] New, supra note 24.

[27] Save Our Servicemembers, supra note 9.

[28] As of December 27, 2023, the prosecutorial power for certain crimes, including rape and sexual assault, has been removed from the hands of commanders and placed with judge advocates in the newly created Office of Special Trial Counsel. For more information, see FACT SHEET: President Biden to Sign Executive Order Implementing Bipartisan Military Justice Reforms, The White House (July 28, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/07/28/fact-sheet-president-biden-to-sign-executive-order-implementing-bipartisan-military-justice-reforms/.

[29] Stephen Losey, Troops Can Finally File Medical Malpractice Claims Against the Military. Here’s How, Military.com (June 16, 2021), https://www.military.com/daily-news/2021/06/16/troops-can-finally-file-medical-malpractice-claims-against-military-heres-how.html.

[30] Mariel Padilla, The 9^th Explains: How a recent court opinion could clear the way for military sexual assault survivors to find justice, The 19th (Aug. 24, 2022, 6:00 AM), https://19thnews.org/2022/08/military-sexual-assault-survivors-justice/.

[31] Lauren C. Brady, When Sexual Assault Becomes Incident to Military Service, 31 J. L. & Pol’y 97, 131 (2022).

[32] Spletstoser v. Hyten, 44 F.4th 938, 958 (9th Cir. 2022).

[33] Id. at 942.

[34] Id.

[35] Id.

[36] Id. at 958.

[37] Id. (quoting Johnson v. United States, 704 F.2d 1431, 1440 (9th Cir. 1983)).

[38] Sexual Assault and Violence Against Women in the Military and at the Academies: Hearing Before the Subcomm. On Nat’l Security, Emerging Threats, and Int’l Relations of the Comm. on Gov. Reform, 109th Cong. 2 (2006) (statement of Christine Hansen, Executive Director, Miles Foundation).