Military Sexual Assault Victims Cannot Sue for Damages
Janet Galla was 21 when she joined the Navy in 1999, following a proud family tradition. She served as a Hospital Corpsman where she earned high praise for her work. In 2004, Galla had returned to her ship from dinner and checked her email in the ship’s Medical Department. A fellow Corpsman asked for assistance with something in one of the operating rooms. Once in there, he tried to kiss her. She resisted and tried to leave the room, but he prevented her from leaving and then raped her. She immediately reported the rape and her attacker was ultimately convicted and sent to prison.
It was then that Galla’s nightmare really began.
From the time she reported the rape, Galla’s chain of command continued to torment her. She was unable to perform her job after they refused to allow her to work in confined spaces with male colleagues “for her own protection.” Since she wasn’t able to do her job, she started receiving poor performance evaluations and was told her presence was bad for the ship’s morale. After transferring to a land duty station and suffering from PTSD, the chain of command continued the retaliation by singling her out for drug and alcohol testing and accusing her of using the rape to justify her poor performance. One commander even told her that “the rape was only five minutes of her life” and that she needed “to get over it already.” In 2005, she accepted the Navy’s offer for immediate separation.
Janet Galla is one of 12 former and current Navy sailors and Marines that filed suit against various commanders of the Navy and Marines, as well as three Secretaries of Defense (two former and then current Defense Secretary Leon Panetta). The eleven women and one man were all raped, sexually assaulted, stalked and severely harassed after reporting the offenses. In their suit, they made several allegations that the actions taken (or lack thereof) prior, during and after the incidences violated their constitutional rights.
These violations include the fact that the defendants failed to implement Congress-mandated programs to reduce the assaults suffered by the plaintiffs and failed in their leadership duties by not taking steps to prevent the climate which allowed for the retaliation. They also alleged that military policies which allowed convicted criminals into the military and commanders to interfere with criminal investigations further violated their civil rights.
Earlier this month, a civilian appeals court ruled that they could not sue for damages.
They filed what is called a Bivens action, which is named for a Supreme Court case that allowed for private suits for damages against federal officials for civil rights violations that are not covered under the Federal Tort Claims Act. That FTCA allows for federal employees to make a claim if they suffer injury at the hands of a federal employee. The United States government may be held liable for any injury, death, or loss of property “caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The law is narrowly tailored, has several exemptions and makes successful claims difficult to achieve.
The twelve service members felt that this qualified as a Bivens action because the Supreme Court gave the judiciary more discretion, allowing for private suits against a person and not the federal government. However, to bring such a suit, the plaintiff must prove their constitutional rights were violated. The defendants asked for the complaint to be dismissed before being allowed to move forward. A lower court granted the motion to dismiss and the appeals court upheld the decision.
In their ruling, the appeals court acknowledged the horrific nature of the offenses, but said that the Bivens case and congressional law did not allow them to sue. The plaintiffs did not sue their perpetrators, but instead a chain of command for decisions made in the course of performing their duties. Aside from the fact that active duty personnel are exempt from suing under the FTCA, the Supreme Court and the law also exempts commanders from personal liability for policy decision and actions while in service. As for the plaintiffs’ argument that the officials’ failure to implement Congress-mandated programs which would give the court authority to intervene, the court disagreed. The numerous laws that Congress have passed to address military sexual assault specifically exempts officials from personal liability.
In other words, even if the plaintiffs’ allegations were all proven correct, they would still have no recourse for damages under any applicable law.
The court was interestingly sympathetic to the plaintiffs’ suffering. They seemed almost apologetic that their hands were tied by the limited scope to permit Bivens actions in a military context.
“In affirming the district court’s dismissal, we do not take lightly the severity of the plaintiffs’ suffering or the harm done by sexual assault and retaliation in our military,” they write in their conclusion. “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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