The Feres Doctrine Examined: America’s Untouchable Military

By Kimberly Tuttle (CMC ’19)

In 1950, the Supreme Court decided in Feres v. the United Statesthat the federal government could not be held liable for injuries to members of the armed forces that arise from military service. The Feres Doctrine was created as a result of the case. It grants military entities and personnel immunity within the Federal Tort Claims Act (FTCA), a law that allows specific types of lawsuits against federal government entities or employees who have caused injury to a party within the scope of their employment. Legal immunity was granted to the military with the purpose of insulating it from lawsuits that arise from combat injuries. In practice, however, the Feres Doctrine has extended far beyond its purpose and has negatively impacted the lives of many service members through the denial of their due process rights. It is important that the Supreme Court revisits Feres v. the United Statesand limits the scope of the Feres Doctrine to match its original intent.

The key question in every lawsuit brought by a service member against the military is whether or not the service member’s harm was incident of service. Over the last 68 years, the Feres Doctrine has expanded “incident of service” to include not only combat wounds, but harm resulting from childbirth, experimental drug testing, and even rape.

In 2013, a veteran named Rebekah Moani Daniel bled to death while giving birth to her daughter, a mishap that commonly results in a malpractice lawsuit in the United States. However, due to the active duty military status of her husband, he was unableto file a medical malpractice lawsuit against the military hospital. This case gained media attention for its clear disconnect from “incident of service.” Critics failed to see how the death of Rebekah Daniel was related to her husband’s service and thus prohibited him from filing a lawsuit.

Unfortunately, there are several cases like it. Over 2,000 malpractice claimswere filed against the Army, Navy, and Air Force between 2010 and 2015. Yet, only 254 of the claims resulted in medical malpractice lawsuits against the Army and Navy. In most civil cases brought by service members, judges are obligated to dismiss the case on the grounds of Supreme Court precedent.

Another case, that is unfortunately representative of many, is that of Kori Cioca, who was sexually harassed and assaulted by her male supervisor while serving in the military. He exposed himself to her, dislocated her jaw, and raped her. She attempted to report the abuse to her supervisors, though was unsuccessful due to the fact that they were close with her attacker. The attacker was eventually punished, but only with a minor decrease in salary. Contrarily, Cioca suffered a loss in veteran benefits and was involuntarily discharged from the military for having an “inappropriate relationship.”

The Feres Doctrine has undeniably resulted in the exploitation of the military sexual assault epidemic. It has insulated military personnel from nearly every type of lawsuit brought by a service member and as a result, has allowed members of the military to act without fear of legal repercussions. By granting legal immunity to rapists solely for the fact that they are in the military, the government denies service members basic civil rights, such as due process. Every American citizen is entitled to fair treatment within the judicial system. Members of the armed forces should not be an exception.

The Feres Doctrine has created a catch 22 for American service members. While it protects them from being sued for inevitable combat mistakes, it protects them from being sued for acts like rape and medical malpractice as well. The Feres Doctrine has placed military personnel beyond the reachof the legal system and in turn has created a dangerous loophole that has perpetuated rape culture in the military and negatively impacted the lives of many soldiers.

The Invisible War,a groundbreaking investigative documentary has exposed the reality of military sexual assault and demonstrated the vicious cycle of rape that occurs due to lack of accountability within the military. 33% of rape victims in the military do not report sexual assault because the person they would have to report it to is a friend of the rapist. 25% do not report it because the person they would have to report the rape to is the rapist himself. In 2016, the Department of Defense estimated that less than 1% of sexual assault offenses resulted in a conviction of the attacker through the court-martial process.

The wide scope of legal immunity that the Feres Doctrine grants to the military has sparked significant criticism. Late Supreme Court Justice Antonin Scalia famously stated “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” A petitionhas been filed on behalf of Rebekah Daniel, the veteran who died during childbirth, for the Supreme Court to examine the judicial doctrine. If it is heard, the Supreme Court will be given the choice to narrow the scope of the doctrine and implement accountability structures in the military or to leave the scope of the Feres Doctrine as is. It is important that more people become aware of the dangers of the wide application of the Feres Doctrine and urge the Supreme Court to revisit the doctrine so due process can be applied equally to civilians and service members alike.




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