The Supreme Court on Monday declined to hear an appeal from a former West Point cadet who said she was raped at the academy, but Judge Clarence Thomas said the court should have taken the case to correct decades of injustice.
The woman, identified in court documents only as Jane Doe, sued two senior officers who were West Point administrators, arguing that the sexual assault policies of the US Military Academy were inadequate and did not protect students from the sexual violence. She said a younger comrade raped her when they went for a late night walk in 2010 during her sophomore year at West Point.
But lower courts dismissed his case, citing a 1950 Supreme Court ruling that military personnel cannot sue for injuries “related to” their military service, even though federal law specifying when the federal government can be sued excludes claims for injuries arising from “combat activities” in wartime.
Thomas said on Monday that the 71-year-old case, known as Feres v United States, was poorly resolved. Jane Doe “could have made the same claims if she had been a civil company employed by West Point instead of a student.”
Due to the earlier ruling, “If two Pentagon employees, a civilian and a service member, are struck by a bus in the Pentagon parking lot and take legal action, only the civilian may have a chance of plead its claims on merit, ”he said.
In the seven decades since the judgment in the Feres case, other members of the court criticized her, including Antonin Scalia, Ruth Bader Ginsburg and John Paul Stevens.
A group of law professors, including Laurence Tribe at Harvard and Steve Vladeck at the University of Texas at Austin, had urged the court to take up the latest case.
“At the time of her rape, Ms. Doe was not a soldier engaged in combat or on a base; she was, in fact, not even obliged to enter military service yet, ”they said. “Ms. Doe wasn’t doing anything typically ‘military’ either. The only thing connecting Ms Doe’s rape to military service was her enlistment at West Point. Yet under Feres, that alone was enough to make his rape the incident of military service. “