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Court Ruling in Military Sexual Assault Case Creates Slippery Slope

In July, an appeals court upheld an earlier ruling from a lower court that said military commanders ultimately were not responsible for the actions of their subordinates in regards to sexual assaults, even if those actions directly rob a service member of their basic civil rights.

This is just one more example of service members being denied the same court protections as civilians. In the future, this could affect retention and morale within the services.

In 2012, a group of 12 former Navy and Marine Corps service members filed a lawsuit against former Defense Secretary Leon Panetta, the secretary of the Navy, the Marine Corps Commandant, and various other secretaries alleging that these “military leaders failed to institute policies protecting subordinates in sexual assault cases.”

The sticking point is that the plaintiffs in the case are trying to hold the secretaries personally liable for the actions of those far below them and collect monetary recompense.

On July 18, a three-judge panel representing the U.S. Court of Appeals for the D.C. Circuit Court handed down their final ruling on the case. The judges upheld a lower court’s ruling which found that service secretaries and other senior military leaders are not personally liable for their management decisions — including the decisions made by those lower in the chain of command — about the supervision and discipline of service members.

We are disappointed that the federal courts are not allowing service members access to the court to protect their constitutional rights.
Susan L. Burke
“[This] appeal is both difficult and easy. Difficult, because it involves shocking allegations that members of this nation’s armed forces who put themselves at risk to protect our liberties were abused in such a vile and callous manner. Easy, because plaintiffs seek relief under a legal theory that is patently deficient,” wrote Judge Thomas Griffith in the ruling.

The “existence of grievous wrongs does not free the judiciary to authorize any and all suits that might seem just. Our authority to permit [cases like this] is narrow to start, and narrower in the military context,” Griffith added.

This is not the first time that a group of service members has sued the secretary of defense or the service secretaries for monetary damages related to military sexual trauma. In 2011, the case of Cioca v. Rumsfeld involved two former defense secretaries, Donald Rumsfeld and his successor, Robert Gates. That case was dismissed as well.

“We are disappointed that the federal courts are not allowing service members access to the court to protect their constitutional rights,” Susan L. Burke, the attorney in both cases, told the Military Times.

Much like the Feres Doctrine, it is nearly impossible for service members to sue the government for financial damages. Feres addresses medical malpractice in the military, something that is a serious problem based on recent information.

Under the law, victims are required to pursue justice within an already broken military system, forcing them to trust the very people who have already proven themselves to be untrustworthy.

Responsibility and leadership are two words that are often used in a variety of military and political situations, being tossed about in press releases and speeches. However, this ruling creates a slippery slope when it comes to responsibility and leadership.

Thomas Paine said, “A body of men holding themselves accountable to nobody ought not to be trusted by anybody.” His words seem somewhat prophetic given this ruling and what’s going on within the military today. If leaders can’t be held responsible, what is to stop them from abusing their leadership position?

This is something that has concerned Army leaders in recent years. A 2011 survey of Army leadership found that more than 80 percent of officers and senior enlisted leaders observed a “toxic leader” in the preceding year and that 20 percent said they worked for one. The other branches of service have similar concerns.

“The Army defined toxic leaders as commanders who put their own needs first, micro-managed subordinates, behaved in a mean-spirited manner or displayed poor decision making,” according to an article in the Washington Post.

“This may create a self-perpetuating cycle with harmful and long-lasting effects on morale, productivity and retention of quality personnel,” the survey found. “There is no indication that the toxic leadership issue will correct itself.”

It is unclear what the military is prepared to do to correct its toxic leadership problem.

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