MANHATTAN (CN) — When it comes to battling the sexual-assault epidemic in the U.S. military, New York’s federal judiciary told the Department of Defense on Wednesday that it will not be reporting for duty.
In a sharply divided ruling, the Second Circuit found that it is up to other branches of government to sort out the case of a West Point cadet who accused top brass of ignoring her reports of rape, part of a pattern of institutional sexism.
“We note, as did the D.C. Circuit, that Congress ‘has been “no idle bystander to the debate” about sexual assault in the military,” U.S. Circuit Judge Debra Ann Livingston wrote for the majority.
Indeed, in 2013, Congress held rowdy hearings to address a nearly 2,000-point spike of sexual-assault reports in the military that year. Michigan’s Democratic Sen. Carl Levin kicked off those proceedings with the troubling statistic that the military averaged more than 70 sexual assaults per day.
Focusing on a period between 2008 and 2010, Doe said that Lt. Gen. Franklin Lee Hagenbeck and Brig. Gen. William Rapp fostered a misogynistic culture on campus that included degrading group chants.
“I wish that all the ladies / were bricks in a pile / and I was a mason / Iʹd lay them all in style,” one of the ditties went, according to Doe’s lawsuit.
West Point allegedly forced all female cadets to be tested for sexually transmitted diseases, but the men faced no such requirement.
“In reversing the district court’s determination … we do not discount the seriousness of her allegations, nor their potential significance to West Point’s administration,” the 32-page opinion lead opinion states.
“As the Supreme Court has made clear, however, it is for Congress to determine whether affording a money damages remedy is appropriate for a claim of the sort that Doe asserts,” Livingston added.
U.S. Circuit Judge Richard Wesley concurred. Both he and Livingston were appointed to the federal appeals court by President George W. Bush.
U.S. Circuit Judge Denny Chin, an appointee of Barack Obama, dissented strongly.
“If West Point were a private college receiving federal funding or another public educational institution and allegations such as these were proven, there clearly would be a violation of Doe’s rights and she could seek recourse for her injuries,” he wrote.
Beyond being a military institution, West Point is also a university.
“When she was subjected to a pattern of discrimination, and when she was raped, she was not in military combat or acting as a soldier or performing military service,” Chin added. “Rather, she was simply a student, and her injuries were incident only to her status as a student. When she was raped, she was taking a walk on a college campus with another student, someone she thought was a friend. The actions and decisions she now challenges had nothing to do with military discipline and command; instead, she seeks recourse for injuries caused by purported failures on the part of school administrators acting in an academic capacity overseeing a learning environment for students.”
The U.S. Attorney’s office for the Southern District of New York declined to comment.
Doe’s plight attracted high-profile support from constitutional law professors, university administrators and human rights groups. The American Civil Liberties Union, American Association of University Woman and Human Rights Watch counted themselves among the dozens that filed friend-of-the-court briefs on her behalf.
Joshua Block, an attorney with the ACLU’s LGBT Project, predicted that the cadet could encounter more luck if she pursued further appeal.
“[The Second Circuit] has the votes to take this en banc … for now,” he tweeted, referring to a rehearing before the appellate court’s 11-judge bench.
“Comes down to [Chief U.S. Circuit Judge Robert] Katzmann,” he added.
Shikha Garg, a law student interning at Yale University’s Veteran Legal Services Clinic, did not reveal whether Doe would lodge an appeal.
She did, however, express disappointment with the majority’s ruling.
“Given the crisis of rape and sexual assault in the military, we should be making it harder for administrators to turn a blind eye, rather than making it easier,” Garg said in a phone interview.
Though lacking data on whether the situation at West Point has improved since Doe’s enrollment there, Garg said she doubted the crisis has been overcome.
“The military still has a long way to go for gender equality,” she added.
West Point did not immediately respond to a request for comment.
As West Point’s superintendent from 2006 to 2010, the year of his retirement, Gen. Hagenbeck served as the university’s superintendent. He also chaired the Sexual Assault Review Program.
Gen. Rapp acted as commandant of the cadets from 2009 to 2011, in charge of administration and training.
West Point confirmed the men no longer hold any position at the university, as the military regularly rotates these positions.