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Abstract: 

The attention on sexual assault cases in the military has brought its entire justice system under scrutiny by Congress. Increased reporting of sexual attacks has in turn increased the number of rape cases that have gone to court-martial: The percentage of sexual assault cases court-martialed in 2012 (68%) is more than double that of 2007 (30%). Many commentators believe the process should follow the rules applied in civilian trials, or be taken out of the military’s hands entirely. Lawyer Susan Burke, who represents the female victim who was assaulted by three fellow Naval Academy midshipmen, has advocated for sexual assault cases to be tried outside the victim’s chain of command, where the conflict of interest creates failures of justice. Burke has filed a federal lawsuit seeking to remove the authority of the Naval Academy’s superintendent over the case, who, without attending the proceedings, decides whether to send a case to a court-martial. This individual also serves on the court-martial jury and has the power ultimately to uphold or overturn the jury’s findings. Because some victims feel that they have been shut out of the military legal system to pursue their cases—and sometimes shut out of the military altogether, leaving them no place to go to redress their grievances—some have taken their cases to civil court outside the military system. This article discusses the current legal atmosphere in civilian courts for sexual assault victims who bring cases for civil relief.

Keywords: Cioca v. Rumsfeld; Feres v. United States; civil relief; military sex crimes; Bivens v. Six Unknown Named Agents; “incident to service”

Affiliations:  1: Forum on Law, Culture & Society.