The legal twists and turns in a rape case involving a soldier stationed at Fort Bragg clearly demonstrate how the U.S. Army is still failing in its responsibility to investigate and prosecute sexual harassment and assault charges from its members. The military at Fort Bragg interfered in the military sexual assault case of Captain Erin Scanlon in multiple ways—from interfering with her support system to taking over the case altogether.
Captain Erin Scanlon reported she was raped by another Army service member when she was an army officer in Fayetteville, N.C., on September 9, 2016, and then was unfairly treated by the military establishment in many ways.
Her support system—both clergy and special victim counsels (SVC)—kept changing on her. (An SVC is a military attorney who specializes in representing victims of sexual assault, sexual misconduct, stalking and other similar crimes.) In fact, Scanlon had five SVCs between when she first filed the unrestricted report in September 2016 and the time of the sexual assault military court martial trial in June 2018.
Months after her alleged rapist was acquitted, Scanlon filed a claim against the Army on grounds that her case was mishandled at Fort Bragg. The military denied the claim, citing the controversial Feres Doctrine, which prevents those who are injured as a result of military service from suing the government.
Since then, Scanlon has left the Army and has become an outspoken advocate for military oversight.
Originally, her civil sexual assault trial had been scheduled for February 2018, and Scanlon was slated to be a witness. But just a week before the trial was to begin, the case was moved from civil to military court, and that trial set for June 2018. Scanlon was forced to accept a new SVC (her fifth) right before the military trial in June, and was not allowed to watch the trial, except to testify. Her fourth Army appointed SVC was ordered to testify against her during the trial. To this day, she still does not have access to all that happened in the courtroom.
The military court jury acquitted the accused soldier, who had been a sergeant in the Army’s only special mission unit, Delta Force, until a few weeks before the attack on September 9, 2016. He had been arrested by the Fayetteville Police Department on September 30 and was eventually indicted by a grand jury in Cumberland County on multiple charges.
“In my opinion, I really didn’t have a chance at justice from the beginning,” Scanlon told ABC News. “I think they went through the motions of giving me a court martial, but they never planned to prosecute.”
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The Controversial Feres Doctrine Prohibits Troops from Suing Military
Scanlon filed for $10 million in damages in April of 2019, alleging “negligent investigation and handling of sexual assault case by Fort Bragg.” The military denied the claim under the Federal Torts Claim Act due to a controversial 1950 Supreme Court ruling known as the Feres Doctrine.
The Feres Doctrine prevents active-duty service members from suing the government and obtaining just compensation for injuries found to be “incident to service.” That 1950 ruling has been used to deny claims for medical malpractice, sexual assault and negligence against the government.
With the Feres Doctrine in effect, filing Scanlon’s claim in federal court would be futile.
Because the Feres Doctrine has been used to prevent claims for sexual assault cases, some service members feel they can rape with impunity. However, limiting Feres would provide legal consequences to negligent and harmful actions, which would promote accountability within the military.
Attorney Natalie Khawam—attorney for Vanessa Guillen—is fighting to make sexual assault an exception to Feres. Khawam won a different case involving Feres, allowing victims of malpractice to file claims to the Department of Defense in the Richard Stayskal Military Medical Malpractice Act—passed in December 2019 as part of the annual National Defense Authorization Act.
Service members will still be unable to sue in federal court for damages caused by medical malpractice, as was originally proposed, but this is a big improvement. Early drafts of the Richard Stayskal bill had included military sexual assault claims and negligence claims, but were later removed.
Sexual Assault: a Pervasive Problem in the Military
According to a 2019 report on Fiscal Year 2018 from the Department of Defense, 6.2 percent of active duty women and 0.7 percent of active duty men reported some form of sexual assault. The report says about one in three service members reported an incidence of sexual assault in 2018. The report also says 24.2 percent of active duty women reported experiencing sexual harassment.
The protocols to report sexual harassment and assault don’t make sense and don’t work. Many victims don’t bother to file, fearing retribution. Then the accused’s command is given the authority to prefer (press) charges or not.
The case of Captain Erin Scanlon shows how a clear case of rape is waylaid, as well as exposes heavy-handed manipulation the military can take to interfere with a sexual assault case.
Sex crimes must not be tolerated and investigation and prosecution must be moved to a third party in order to work. The Feres Doctrine must be limited in order to allow legal consequences and promote accountability within the military.
Even when forming our government, the founding fathers knew to separate the government into three branches to keep those power checks and balances. The lack of these checks and balances in power is what allows the Department of Defense to go unchecked and sexual assaults to run rampant.
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