A "More Searching Judicial Inquiry": The Justiciability of Intra-Military Sexual Assault Claims

INTRODUCTIONIn fiscal year 2013, the U.S. military received 5,061 reports of sexual assault or "unwanted sexual contact."1 This number represents a fifty percent increase in complaints from the previous year.2 Moreover, Department of De1 fense officials reported that approximately 26,000 service members experienced some type of unwanted sexual contact or sexual assault in fiscal year 2012.3Despite departmental and legislative efforts to curb these numbers, female military service members face a higher risk of sexual assault by a fellow military comrade than death by enemy fire.4 Likewise-and not to be overlooked-men represent the majority of service members who are sexually assaulted each year.5 Consequently, war does not cease when these military men and women return home.6 Rather, despite their sacrifice for their country, vic- tims of intra-military sexual assault continue to fight a losing battle for criminal and civil protections in the American legal system.7The enemy in this case is the Feres doctrine, a judicially created exception to the Federal Tort Claims Act ("FTCA") barring all military personnel claims arising out of injuries incurred incident to service.8 In 1950, in Feres v. United States, the U.S. Supreme Court held that the FTCA's broad waiver of sovereign immunity did not extend to claims brought by service members against the government and its officials.9 This wholesale deference to military discipline and decision making by the Court strips military plaintiffs of standing to hold the military or the government responsible for injuries suffered while on active duty.10For countless victims of military sexual assault, the Feres doctrine has closed the doors of civilian courthouses.11 Efforts to hold government and mili- tary officials accountable fall on the deaf ears, as courts continue to dismiss such claims without considering their merits.12 Sovereign immunity trumps individual liability under the Feres doctrine, even in the face of clear injustices suffered by military service members.13This Note argues that the Feres doctrine should be overturned because it does not comport with the text and legislative intent of the FTCA, and because principles of judicial review demand that the Supreme Court step in where, as here, the rights and legal protections of a discrete and insular minority are at risk.14 Part I provides a critical examination of the development and current state of the Feres doctrine and the use of sovereign immunity as a basis for judicial abstention in intra-military claims.15 Part II discusses the limitations of the military justice system and the effect of the Feres doctrine on claims against the government and its officials in the context of intra-military sexual assault.16 Part III then argues that the judicial doctrine must be re-examined by the Supreme Court because judicial review is necessary to protect the rights of victimized military personnel, hold the government and military officials accountable, and bring the Court's construction of the FTCA in line with the text and true intent of the enacting Congress.17 Part III proposes that the Court abandon the Feres doctrine and reinterpret the FTCA's combatant activities exception narrowly to comport with Congress's intent and a common sense definition of the term combatant.18 Doing so, the Court will avoid further tinkering with a doctrine already on unstable ground.19I. THE FERES DOCTRINE & INTRA-MILITARY IMMUNITY: A HISTORICAL BACKGROUNDPart I of this Note details the history of the Feres doctrine and the trajectory of intra-military immunity in the American legal system, beginning with Congress's enactment of the FTCA in 1946 and proceeding through the Supreme Court's expansion of the sovereign immunity exception in intra-military disputes.20 Section A discusses the history and legislative purpose of the FTCA.21 Section B then reviews the Court's 1950 decision in Feres.22 Section C analyzes the evolution and expansion of Feres and discusses the current reasoning articulated by courts for upholding the doctrine today. …