(JustPatriots.com)- The Supreme Court declined to hear a case brought by a former cadet at West Point who alleges she was raped while attending the school as a student. However, Associate Justice Clarence Thomas spoke out, saying that the woman should have been heard.
The woman, who was identified only as Jane Doe, sued two senior officers who served as administrators at West Point while she was there. She claims in her suit that the school had inadequate policies on sexual assault. She says West Point failed to protect their students, also saying she was raped by one of her fellow cadets during her second year at the school in 2010.
Lower courts dismissed her lawsuit. They cited a 1950 ruling that established that members of the service couldn’t sue the government because of the Federal Tort Claims Act of 1946. That law allows American citizens to sue the government in federal court.
However, the 1950 ruling, in Feres v United States, states active-duty military personnel can’t sue over injuries that are “incident to” their service in the military.
In Monday’s dissent, though, Thomas wrote that case was decided incorrectly. He wrote:
“As I have previously explained, this approach has little justification.”
He then quotes a dissent he wrote in 2013 for another case, where he wrote that:
“The Act ‘renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.’
“Emphasizing its breadth, the law contains a narrow carve out for military-related claims: those ‘arising out of … combatant activities … during time of war.’
“This single military exception involving ‘combatant activities’ clearly does not apply here. And, other than this specific exception, the law does not ‘preclud[e] … suits brought by servicemen’ — at least not because of their military status. Feres was wrongly decided; and this case was wrongly decided as a result.
“Under our precedent, if two Pentagon employees — one civilian and one a servicemember — are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim on the merits. Nothing in the text of the Act requires this disparate treatment. Nor is there any background rule that federal bus drivers owe a greater duty of care toward workers who are civilian than those who are military.
“Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell.”
Legal experts were pining to have the Supreme Court take up the case of the ex-cadet. The group, led by Laurence Tribe of Harvard University and Steve Vladeck of the University of Texas at Austin, told NBC News:
“At the time of her rape, Ms. Doe was not a soldier engaged in combat or on base; she was, in fact, not yet even obliged to enter into military service. Nor was Ms. Doe doing anything characteristically ‘military.’
“The only thing connecting Ms. Doe’s rape to military service was her enrollment at West Point. Yet under Feres, that alone was enough to make her rape incident to military service.”