Challenging the Feres Doctrine: Sexual Assault in the Military

by | April 5, 2024 | Criminal/Sexual Violence

Members of the military make incredible sacrifices every day in the service of our country. They place their lives on the line in combat, endure lengthy deployments away from their families and engage in physically grueling labor. Service members expect those hardships when they enlist. What they don’t expect is that sexual assault is a significant risk for those in the military.

A Case Against Dr. Michael Stockin and the U.S. Army

I currently represent eleven current and former Army servicemen in their civil claims against the Army. All of their claims arise out of being sexually abused by Dr. Michael Stockin in the course of purported medical examinations at Madigan Army Medical Center in Washington. In February 2024, Dr. Stockin was arraigned on criminal charges stemming from the sexual abuse of 41 patients. While that number is shocking, the total number of victims may exceed one hundred. There is little doubt that this is the largest sexual abuse scandal the Army has ever faced. Dr. Stockin will be held accountable in the criminal proceedings, but the Army must also be held accountable for its negligence in failing to prevent or stop Dr. Stockin’s predatory conduct.

The Pervasiveness of Sexual Assault in the Military

Although there have been few sexual abuse cases of the magnitude of Dr. Stockin’s, the reality is that military sexual assault is on the rise. According to U.S. Department of Defense Annual Reports, in 2020, servicemembers reported 6,290 incidents of sexual assault, a more than 120% increase from the number of reports in 2015. Between 2021 and 2022, the number of reports rose to 8,942. Given the vast number of sexual assaults that go unreported, the actual number is likely far higher.

Although military sexual assault is a pervasive problem, there are limited avenues of redress for servicemembers who are sexually assaulted. If a civilian is sexually assaulted by a government employee, the civilian can sue the government for negligence under the Federal Tort Claims Act (FTCA). However, servicemembers are generally denied that same right because of something known as the Feres doctrine.

The Limitations Imposed by Feres v. United States

In 1950, in the case of Feres v. United States, the United States Supreme Court ruled that servicemembers are barred from bringing claims under the FTCA for all “injuries [that are] incident to service.” In the decades since, Feres has been used to prevent servicemembers from seeking civil relief for almost all tort claims, even those stemming from events outside the performance of their military duties. Most shockingly, Feres has been used as an almost impenetrable bar to keep servicemembers from bringing sexual assault claims. For years, advocates, including Supreme Court Justices, have been asking, “how can sexual assault be incident to service?”

New Hope for Victims of Sexual Abuse in the Military

The chance of success for servicemembers bringing civil sexual assault claims has historically been bleak. However, in 2022, the Ninth Circuit Court of Appeals provided a glimmer of hope that the tides may be changing. In Spletstoser v. Hyten, a former colonel alleged that she was raped by a general. When she tried to seek civil redress, the United States sought to dismiss her claims arguing that the Feres doctrine barred her lawsuit. The case ultimately made its way to the Ninth Circuit Court of Appeals, which ruled that the case should be allowed to proceed because sexual assault cannot be considered “incident to service.” While the legal landscape under Feres continues to be challenging, the Speltstoser ruling provides a path forward to holding the military accountable for the sexual assault of servicemembers.

Using Spletstoser as a foundation, I am vigorously advocating on behalf of my clients who were victimized by Dr. Stockin. I have brought these cases because I firmly believe that servicemembers deserve the same justice that civilian sexual assault survivors are entitled to.

Read more on Christine Dunn’s 20th Anniversary Reflection Piece.