In my last truth, I discussed how a decision not to prosecute is not the same as finding nothing happened. If a case isn't prosecuted in the criminal realm, victims often turn to civil court, where the burden of proof is lower. But for service members, the Feres Doctrine blocks claims under the Federal Tort Claims Act if injuries arise “incident to service,” which has barred survivors from pursuing civil remedies - injury from sexual assault by someone in the military is deemed “incident to service”.
The continued application of the Feres Doctrine has drawn criticism, and multiple efforts have been made to rectify this. In her February 2025 article, The Sexual Violence Epidemic v. the Uniform Code of Military Justice & Feres Doctrine, Krista Bordatto outlines the historical rationale behind the doctrine, its purpose, and its effect in denying civil remedies to military survivors of sexual violence. (Bordatto further observes that reforms have left sexual harassment under command discretion rather than within the jurisdiction of the Office of Special Trial Counsel.)
The good news is that there are cracks. In the 2022 case Spletstoser v. Hyten the court held that sexual assault is not incident to service. The ruling has inspired other suits, though it is binding only in the Ninth Circuit. The Supreme Court has declined to revisit Feres, with Justice Clarence Thomas consistently dissenting, describing the doctrine as “indefensible.”
Ruth's Truth: Sexual assault is never “incident to service.” Unless Congress reforms Feres, the Supreme Court revisits, or more circuits follow Spletstoser, survivors remain without an accepted civil path to justice.
Legal action and collective voice are imperative. After watchingHamilton for the first time in the theater last week, I am inspired to begin a discussion about "Feres Papers" initiative. If anyone in the legal community is interested, please message me.
Ruth's Point to Ponder: In 1950, the year when Feres was decided, a popular "special occasion" dish was Spam baked with pineapple and cloves. Spam still has many fans and a place in today's kitchens, but most of us would agree it's no longer the centerpiece of a holiday meal. The Feres decision is no different: once considered palatable, it's now outdated.