Workplace Issues: Sex assault case raises difficult issues regarding military

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This case demonstrates that the courts do not favor imposing any liability against military institutions — even involving sexual harassment and rape at the U.S. Military Academy at West Point. The case is Doe v. Hagenbeck, decided on August 30th, 2017 (No. 15-1890-cv).

Jane Doe is a former United States Military Academy (“West Point”) cadet who alleges that during her second year at West Point she was sexually assaulted by a fellow cadet. She filed this lawsuit not against the cadet, but against two superior officers, in their personal capacities.

Lieutenant General Hagenbeck was superintendent of West Point from approximately July 2006 to July 2010, and in that role he chaired the Sexual Assault Review Board, which is the primary means of oversight of the sexual assault prevention and response program at West Point. Brigadier General Rapp was commander of the cadets at West Point from 2009 to 2011, and was in charge of the administration and training of the cadets. Doe alleges that both superiors “perpetuated a sexually aggressive culture” at West Point that “discriminated against female cadets,” put female cadets at risk of violent harm and resulted in her sexual assault.

Doe was enrolled at West Point as a cadet, training to become a military officer. That means she was enrolled at West Point, which is also a college. She claims the culture at West Point was misogynistic and male oriented, with constant sexism not only among the male students, but also its faculty. In the amended complaint, Doe alleges that during team building exercises, degrading chants included the following:

“I wish that all the ladies were bricks in a pile / and I was a mason / I’d lay them in style,” and

“I wish that all the ladies were holes in the road / and I was a dump truck / I’d fill ‘em with my load,” and

“I wish all the ladies were statues of Venus / and I was a sculptor / I’d break ‘em with my penis.”

Doe was raped by a male student. The health clinic on campus did not properly respond to the sexual assault. Doe claims that West Point leadership mishandled the incident as well. She sued them under Bivens over equal protection violations.

Bivens claims are far and few, although possible. The other principle at play in this case is from the Feres Doctrine—named after a Supreme Court case from 1987—which states that courts should not entertain lawsuits that would challenge military discipline. The majority (Livingston and Wesley) states:

“This Supreme Court precedent frames our inquiry and leads ineluctably to the conclusion that Doe cannot maintain her Bivens claim. Doe was a member of the military at the time the events giving rise to her claim occurred, and the claim concerns superior officers. Further, her claim calls into question ‘basic choices about the discipline, supervision, and control’ of service personnel and would ‘require the civilian court to second-guess military decisions,’ thus triggering the incident-to-service rule. United States v. Shearer, 473 U.S. 52, 57-58 (1985) (noting that allegations ‘going directly to the management of the military that might impair essential military discipline lie at the core of rules concerns’). In such circumstances, her Bivens claim must be dismissed.”

In dissent, Judge Chin provides further detail into the sexist culture at West Point. He notes that while West Point is a military facility, “it is quintessentially an educational institution.”

Summarizing his analysis:

“In my view, the Feres Doctrine does not bar Doe’s Bivens claim that she was denied her constitutional right to equal access to education, for her injuries did not arise ‘incident to service.’ First, as to the activities immediately preceding Doe’s rape, her ultimate injury, she was engaged in purely recreational activity: she was out for an evening walk on a college campus, after curfew, with another student who was a friend. Second, as to her broader activities at West Point she was a student attending college: she was taking classes, participating in extracurricular activities, and learning to grow up and to be self-sufficient and healthy individual. She was not a solider on a battlefield or a military base. She was not traveling in a military car or boat or plane or pursuant to military orders. She was not being treated by military doctors. She was not on duty or in active service or on active status, and she was not yet obliged to enter military service. There was ‘nothing characteristically military’ about what she was doing and her injuries did not arise out of military employment.”

The dissent by Judge Chin suggests that the facts and context of Doe’s amended complaint may distinguish it from invoking the Feres Doctrine and allow her Bivens claim to proceed.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected], (716) 856-KORN (5676) or www.lindykorn.com.