(CN) - A woman raped on Fort Bragg in front of her children by a soldier suspected of burglary and assault cannot hold the U.S. Army liable, the 4th Circuit ruled.
On Dec. 13, 2009, U.S. Army Specialist Aaron Pernell drunkenly entered the home of Maria Durden on Fort Bragg, and raped her in front of her children, according to the ruling.
DNA evidence ultimately identified Pernell as Durden's assailant and as the perpetrator of a series of series of burglaries and sexual assaults around Fort Bragg since 2008.
When Pernell then requested mental-health treatment, the military determined that he posed a medium risk of harm to himself and others. The Army said it placed the soldier on barracks restriction and kept him under constant surveillance.
Pernell is seving 50 years after a general court-martial convicted him on Dec. 8, 2010, of raping Durden.
The Army also reduced Pernell's rank and dishonorably discharged him.
Pernell, who joined the Army at age 18, had apparently been abusing drugs and alcohol to deal with emotional problems since his first deployment.
In an ensuing federal complaint, Durden claimed that the U.S. government had a duty to protect her from Pernell, and failed to enforce the restrictions on his on-base movement that would have prevented her assault.
She claimed that Pernell had confided in his staff sergeant back in August 2009 about his desire to kill himself and 11 current and former members of his unit.
A month later, he allegedly confided in a fellow soldier about his drug and alcohol abuse. Durden said in both instances, Pernell was discouraged him from seeking mental health treatment that could "mess up" his career.
It was that same month, September 2009, that Pernell's violent nature stepped out of the shadows and he was arrested for burglarizing a home in the nearby Fayetteville, N.C., and assaulting the home's owners with a pellet gun.
After Pernell sat in jail for a month, his parents posted bail and his platoon leader tried to drive him from the jail to Fort Bragg.
Durden said Pernell did not even make it back to the base before he again revealed his intent to kill himself and the members of his unit.
The commanding officer allegedly then ordered Pernell to be escorted at all times by a noncommissioned officer and to be checked every two hours to ensure that he remained in his barracks.
In its defense against Durden's claims, the government said that the escort was only ordered if Pernell went off-base, and that his commanding officer lifted the bihourly checks after a mental health evaluation found Pernell had a low risk of self-harm or harm to others.
A federal judge in Raleigh ultimately dismissed Durden's suit for lack of jurisdiction or alternatively failure to state a claim, and a three-judge panel of the 4th Circuit affirmed Wednesday.
It was not foreseeable from Pernell's expressed desire to kill himself and members of his unit that Pernell would commit rape, according to the 29-page ruling.
"Setting aside the criminality (or not) of Pernell's desires, Durden has not demonstrated that the Army should have gleaned from those desires the notion that Pernell would sexually assault any tenant on Fort Bragg, let alone Durden specifically," Judge Henry Floyd wrote for the panel (parentheses in original).
While the Army voluntarily undertook to monitor Pernell following his release from jail, it had no way of knowing at the time that Pernell had committed other sexual assaults in the Fayetteville area, and needed to be constantly escorted for the protection of others, the Richmond, Va.-based court found.
"It might be a different case if the Army knew that it was one of its own soldiers, and Pernell specifically, that committed the 2008 and 2009 sexual assaults in Fayetteville," Floyd wrote. "Under those circumstances, the Army may have had reason to know that Pernell was a serial offender and thus owed to Durden a duty to control Pernell upon his release from civilian confinement. Durden does not dispute, however, that the Army did not become aware that Pernell was involved with the 2008 and 2009 crimes until after Pernell raped her."
While the Army knew Pernell abused alcohol and drugs, had expressed desire to kill himself and others, and had possibly committed a burglary and assault, none of these incidents alone or together required the Army by law to place Pernell under 24-hour surveillance and confine him to his barracks.
"To hold otherwise would render every private individual liable for the intentional torts of another person against unknown third parties simply because the individuals knew that the tortfeasor abused alcohol and drugs and committed a violent crime at some point in the past," Floyd said.
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