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Congress Should Revisit Feres Doctrine to End Military Sexual Assault, Claims Center for Law & Military Policy

HUNTINGTON BEACH, Calif., March 11, 2019 /PRNewswire/ -- The announcement by U.S. Sen. Martha McSally of Arizona that she had been raped by her commanding officer while serving in the U.S. Air Force is strong evidence that the misguided "Feres Doctrine" is doing irreparable harm to the morale of U.S. military services, according to Dwight Stirling, the CEO of the Center for Law and Military Policy (CLMP).

Stirling, a USC Professor and former military prosecutor, will soon become the first legal scholar in the U.S. to receive a doctorate in the study of the Feres Doctrine. "It is clear that until Congress finally acts on this restrictive doctrine, there won't be any effective change in the prosecution of military sexual assault," he said.

"We commend Senator McSally for her bravery and honesty in telling her story to the nation," said Stirling. Unfortunately, he said, her story is far from unique. Some researchers estimate that well over half of all women serving in the military are, at some point, sexually assaulted.

Throughout her 26-year Air Force career, McSally said she had witnessed "many weaknesses in the processes involving sexual assault." Sadly, McSally said she "suffered in silence" because of her mistrust of reporting. "I really felt like the system victimized me again," she said.

"Assault victims suffer in silence and will continue to do so as long as the chain of command is responsible for the prosecution," said Stirling. Fearing career retaliation, some estimates say 90 percent of sex assault victims, like McSally, don't even bother to report.

"It is outrageous that sexual assault is characterized as an occupational hazard of military service," said Stirling. "The only way to fix the system is to empower the victims of military sexual assault to hold their assailants accountable in civil court," claims Stirling. "It is absolutely the only way."

"Wearing a military uniform should never separate American soldiers from their legal rights," said Stirling. "It should be obvious that unwanted sex is never incident to military service." Allowing victims to hold their assailants accountable in civil court would "enhance the military mission, not harm it," he said.

Stirling leads the CLMP, a growing coalition of retired JAG officers, attorneys, military sexual survivor groups, and other advocates who believe recent Congressional hearings underscore failed attempts by the military to curtail military sexual assault. Instead, the situation is apparently getting worse.

The Feres Doctrine originated in a 1950 Supreme Court decision and is still today used to prevent service members from taking their claims of sexual assault to a civil court. When the doctrine was last challenged in 1987, it was narrowly upheld (5-4). The late Supreme Court Justice Antonin Scalia strongly dissented and urged Congress to modify the Feres Doctrine.

"As long as this doctrine immunizes service members from civil liability when causing harm to each other, it is questionable whether service members will ever feel protected," Stirling said. "Our active duty troops protect us, but when they are betrayed, we do not protect them."

The CLMP believes every survivor of sexual assault deserves access to the civil court system. To deny a survivor their day in court because he or she was serving in the military at the time of the assault is unconscionable. The CLMP supports legislative change at both the state and federal levels.

For more information, visit https://centerforlaw.org

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David N. Young
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SOURCE Center for Law & Military Policy