The legal twists and turns in a rape case involving a soldier stationed at Fort Bragg clearly demonstrate that the U.S. Army is still failing in its responsibility to investigate and prosecute sexual harassment and assault charges from their members. The military at Fort Bragg interfered in Captain Erin Scanlon’s military sexual assault case in multiple ways, interfering with her support system and taking over the case. Months after her alleged rapist was acquitted, Scanlon filed a claim against the Army on grounds that her case was mishandled at Fort Bragg. The military denied the claim, citing the controversial Feres Doctrine. Since then, Scanlon has left the Army and has become an outspoken advocate for military oversight.
Captain Erin Scanlon reported she was raped by another Army service member when she was an army officer in Fayetteville in September 2016, and then was unfairly treated by the military establishment in many ways. Her support system – both clergy and Special Victim Counsels (SVC) – kept changing on her. An SVC is a military attorney who specializes in representing victims of sexual assault, sexual misconduct, stalking, and other similar crimes. In fact, Scanlon had five SVCs between when she first filed the unrestricted report in September 2016 through the sexual assault military court martial trial in June 2018. She was closest to the fourth SVC, with whom she worked about 6 months. Originally, a civil sexual assault trial had been scheduled for February 2018, and Scanlon was going to be a witness. Just a week before trial was to begin, the case was moved from civil court to military court. The military trial was set for June 2018. Scanlon was forced to accept a new SVC (her fifth) right before the military trial in June. Scanlon was not allowed to watch the trial, only to testify. Her 4th Army appointed SVC was ordered to testify against her during the trial. She still does not have access to all that happened in the courtroom.
The military court jury acquitted the accused soldier, who had been a sergeant in the Army’s only special mission unit, Delta Force until a few weeks before the attack on September 9, 2016. He had been arrested by the Fayetteville Police Department on September 30. He was eventually indicted by a grand jury in Cumberland County on multiple charges. ABC News covered this case in detail on January 21, 2020, at “Army officer says she was raped, but Supreme Court ruling blocks her from justice.”
Controversial Feres Doctrine
Scanlon filed for $10 million in damages in April of 2019, alleging “negligent investigation and handling of sexual assault case by Fort Bragg.“ The military denied the claim under the Federal Torts Claim Act due to a controversial 1950 Supreme Court ruling known as the Feres Doctrine. The Feres Doctrine prevents active-duty service members from suing the government and obtaining just compensation for injuries found to be “incident to service.” That 1950 ruling has been used to deny claims for medical malpractice, sexual assault and negligence against the government.
With the Feres Doctrine in effect, filing Scanlon’s claim in federal court would be futile. Because the Feres Doctrine has been used to prevent claims for sexual assault cases, some service members feel they can rape with impunity. On the other hand, limiting Feres would provide legal consequences to negligent and harmful actions, which would promote accountability within the military.
Attorney Natalie Khawam is fighting to make sexual assault an exception to Feres. Khawam won a different case involving Feres, allowing victims of malpractice to file claims to the Department of Defense (DoD) in the Richard Stayskal Military Medical Malpractice Act of 2019, which was passed in December 2019 as part of the annual National Defense Authorization Act (NDAA). Service members will still be unable to sue in federal court for damages caused by medical malpractice, as was originally proposed, but this is a big improvement. Early drafts of the Richard Stayskal bill had included military sexual assault claims and negligence claims, but they were later removed.
Sexual assault is a terrible problem in the military
According to a 2019 report on Fiscal Year 2018 from the Department of Defense, 6.2% of active duty women and 0.7% of active duty men reported some form of sexual assault. The report says about 1 in 3 service members reported an incidence of sexual assault in 2018. The report also says 24.2% of active duty women reported experiencing sexual harassment.
The protocols to report sexual harassment and assault don’t make sense and don’t work. Many victims don’t bother to file, fearing retribution. Then the accused’s command is given the authority to prefer (press) charges or not. The case of Captain Erin Scanlon shows how a clear case of rape is waylaid and also exposes heavy-handed manipulation the military can take to interfere with a sexual assault case (five SVCs in less than two years, multiple clergy, suddenly moving a trial from civilian to military court) .
Sex crimes must not be tolerated and investigation and prosecution must be moved to a third party in order to work. The Feres Doctrine must be limited in order to allow legal consequences and promote accountability within the military. Even when forming our government, the founding fathers knew to separate the government into three branches to keep those power checks and balances. The lack of these checks and balances in power is what allows the Department of Defense to go unchecked and sexual assaults to run rampant.
Update: Another Special Forces member, Col. Kevin M. Russell, found not guilty of sexually assaulting an Air Force captain who was on the same deployment with him in 2015 to Pakistan. A third person who helped carry the woman home testified that she was incapacitated. Note that the eight-man panel included seven colonels and a brigadier general. More at the Fayetteville Observer, “Army Special Forces colonel found not guilty of sex assault,” 8/27/20.
- “‘That’s my justice’: Former Fort Bragg soldier, sexual assault survivor advocates for military oversight,” 7/1/20, ABC News.
- “Army officer says she was raped, but Supreme Court ruling blocks her from justice,” 1/21/20, ABC News.
- “The Feres Doctrine Denies Rights to Sexual Trauma Victims – How One Soldier Is Fighting It,” 4/26/20, Coffee or Die blog,
- “The Long And Difficult Road To Changing The Feres Doctrine,” 12/29/19, The Khawam Law website.
- “Congress grants military members partial victory, but Feres Doctrine survives,” 12/20/19, The Hill.
- “Military Can No Longer Avoid Medical Malpractice Claims,” 12/19/19, US News.
- “Appendix B: Statistical Data on Sexual Assault,” 2019, Sexual Assault Prevention and Response (SAPR) Report of Fiscal Year 2018.
- “Feres Doctrine and the Obstacles To Justice For Military Rape Victims,” 5/9/13, PBS.
- “SVC FAQ,” JBSA military.Versions of this topic:
- NC Policy Watch, “#MeToo movement exposes failure of U.S. military to take seriously sexual assault,” 7/29/20, https://www.ncpolicywatch.com/2020/07/29/metoo-movement-exposes-failure-of-u-s-military-to-take-seriously-sexual-assault/
- “Military Interference in Sexual Assault Case of Captain Erin Scanlon at Fort Bragg,” Ms. Magazine, 8/4/20.Added 9/20/20 – another case under damning circumstances where Special Forces man found not guilty by Fort Bragg.
- “Army Special Forces colonel found not guilty of sex assault,” 8/27/20, Fayetteville Observer.