A “More Searching Judicial Inquiry”: The Justiciability of Intra-Military Sexual Assault Claims

Abstract

More than seventy members of the U.S. military face abusive sexual contact, aggravated sexual assault, or rape every day, equating to three victims every hour. Congress and the Department of Defense have proposed reforms that focus on changes to the criminal justice system under the Uniform Code of Military Justice (UCMJ) in addition to tactical safety and informational efforts for prevention and response. Although deterrent measures and a transparent criminal justice system are both necessary components for meaningful reform, this Note argues that lasting institutional change and true individual justice can only be achieved by providing a civil remedy. To date, Article III courts deny military personnel civil remedies against both their perpetrators and the institutions charged with protecting military service members. This Note argues for the U.S. Supreme Court to overturn its 1950 decision in Feres v. United States to comport with the text and legislative intent of the Federal Tort Claims Act, and calls upon the Court to recognize its role in protecting a discrete and insular minority—military victims of sexual assault—suffering from the traumatic personal and professional effects of a system that provides no civil redress.