A 70-year-old law has prevented a West Point cadet from seeking justice for her rape by a fellow cadet. Jane Doe was denied certiorari by the U.S. Supreme Court because members of the military cannot sue for injuries “incident to military service.” The Court did not explain why rape falls into this category.

Justice Clarence Thomas was the sole dissenter from the Court’s one-sentence decision on May 3 that only stated, “The petition for a writ of certiorari is denied.” Thomas’s strong disagreement is based on his reading of the “plain text” of the Federal Tort Claims Act (FTCA) because he believed “West Point’s sexual assault policies were inadequate to protect students from sexual violence.”

A review of the FTCA is instructive to understanding the Court’s decision. In 1946, Congress passed the law that permitted private parties to sue the U.S. for most torts committed by persons acting “on behalf of the country.” The law waived sovereign immunity and held the United States liable to “all persons, including servicemen, injured by the negligence of Government employees.” There was, however, a specific exception for “combatants during times of war.” Just four years later in 1950, however, in a landmark case called Feres v. The United States, the Supreme Court ruled that claimants like Doe could not make any claims for injuries “incident to service.” The words “incident to service” do not appear in the FTCA.

In her pursuit for justice, Doe claimed four causes of action, including violations of her due process and equal protection rights. The High Court denied cert only for her claims under the FTCA. The Second Circuit Court of Appeals held that Doe’s FTCA claims were “incident to service,” and she appealed to the Supreme Court. She asked the Court to overrule Feres because it was “wrongly decided” or in the alternative to decide that Feres should be limited when the injuries to service members took place “during recreational activities or while attending service academies.” The Supreme Court disagreed with both approaches.

Doe began her studies at West Point in 2008. She was raped by a fellow cadet during a “recreational walk” one evening. Her petition states the “when she reported the assault West Point failed to adhere to mandatory Department of Defense (DOD) regulations governing sexual violence response.” Her petition alleged that West Point permitted “a sexually aggressive and misogynistic environment, failed to punish rapists and other sexual assailants, and failed to implement mandatory DOD directives and instructions to protect victims.”

Petitioner noted in a footnote, “In 2010, nearly 10% of female cadets indicated they had been subject to sexual assault at West Point that year.” She also provided anecdotal accounts of harassment through inappropriate songs, jokes, and other forms of harassment that occurred in full view of senior officers. After her rape, she sought medical and emotional care from West Point, which she said once again “failed to comply with mandatory military directives.” Doe withdrew from school. She sued and included claims under the FTCA. Both the District Court and Court of Appeals for the Second Circuit dismissed her FTCA act claims following the Feres precedent.

The Court of Appeals reasoned that her claims were “incident to service” because her allegations about West Point’s inadequate sexual assault prevention training, failure to investigate sexual assault claims and lack of support for victims “would require a civilian court to engage in searching and fact finding about the discipline, supervision, and control of the cadets” and West Points’ responsibility for training future officers. Her claims, they reasoned, were therefore “incident to service” and thus barred under Feres. The court found her arguments unsupported by case law and wrote that since she was a student, she was at all times “inextricably intertwined” with her “military pursuits.”

Petitioner Doe cited a long string of decisions based on Feres that gravely injured both military personnel and even their children. In one case, for example, it pointed to the military’s failure to prevent a mock lynching of a Black servicemember. Justice Thomas wrote, “Feres has unjustly closed the courthouse doors to too many injured service-members and for too long has left tortious government conduct unchecked. The time to revisit Feres is now.” Petitioner also noted that Doe would have been allowed to sue under the FTCA if she had attended a private college or if she had been a civilian who was sexually assaulted by a cadet.

Thomas, alone, agreed with Doe. He wrote, “Under the plain text of the Act, petitioner’s status as a West Point cadet should have posed no bar to litigation.” He reiterated the Second Circuit’s flawed reasoning, noting that Doe’s claims would have been allowed if she had been a private civilian contractor rather than a student. He cited the narrow exemption in the original FTCA for those engaged in combat during war and said that Doe’s status was not parallel.

The Thomas dissent quoted the late Justice Scalia in a different case. Scalia wrote, “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 claims on the merit.” Scalia concluded, “At a minimum, we should take up this case to clarify the scope of the immunity we have created.”

Both Thomas and petitioner Doe detailed the confusion that Feres is causing to lower courts that “are understandably confused about what counts as an injury ‘incident’ to military service.” The law has been inconsistently applied to some inebriated servicemen who drowned, but not to others. It barred injury claims by a servicemember who was injured during a waterskiing accident caused by a boat owned by the military, but it allowed a suit by a member of the military who was struck by a van owned by the Army at a rugby game.

Thomas concluded his strong dissent with the words, “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.”

That did not occur. Feres lives on and one cannot but wonder how many dedicated young women and future officers might be dissuaded from serving their country once they learn of Ms. Doe’s fate.