Military Rape Culture Claims Won’t Advance

     (CN) – Senior military and Defense Department officials need not face claims over their alleged failure in responding to the problem of sexual assault, the D.C. Circuit ruled.
     The decision Friday affirms dismissal of a 2012 complaint brought by 11 women and one man who said they were “raped, sexually assaulted, stalked … and severely harassed,” and then subjected to humiliation and retaliation after reporting those crimes.
     Led by Ariana Klay, the plaintiffs complained that senior officials in the military and Department of Defense interfered with criminal investigations and presided over a dysfunctional system that allows rapists to avoid incarceration.
     The D.C. Circuit said the case was 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,” Judge Thomas Griffith wrote for the three-judge panel.
     One plaintiff said her sexual-assault report led the military to bar her from working in enclosed spaces with male colleagues, making it extremely difficult for her to do her job and leading to negative performance reviews.
     A supervisor told her to “get over it already,” that the rape was only “five minutes of her life,” and accused her of using the rape as an excuse for poor job performance.
     Finding that these claims do not support a lawsuit, however, Griffith noted Supreme Court precedent holding “that military officials are not subject to personal liability under the Constitution for their management decisions, including the choices they make about the discipline, supervision, and control of servicemembers.”
     “Because adjudication of plaintiffs’ claims would require judicial intrusion upon such military matters, we affirm the district court’s dismissal of their suit,” Griffith added.
     The court also nixed claims that three separate secretaries of Defense ignored Congress’ mandates to establish a commission that would investigate the military’s treatment of sexual assault.
     This alleged misconduct is not attached to any federal statue that would authorize a cause of action for damages, according to the ruling.
     “Given that Congress is extensively engaged with the problem of sexual assault in the military but has chosen not to create such a cause of action, we decline to imply a Bivens remedy here, even in the face of plaintiffs’ allegations of statutory violations,” the 16-page judgment states, citing the 1971 decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
     The decision also echoes the sympathy U.S. District Judge Amy Jackson expressed in dismissing the case last year.
     “We do not take lightly the severity of plaintiffs’ suffering or the harm done by sexual assault and retaliation in our military,” Griffith wrote. “But the existence of grievous wrongs does not free the judiciary to authorize any and all suits that might seem just.”

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