How the Feres Doctrine Prevents Cadets and Midshipmen of Military-Service Academies from Achieving Justice for Sexual Assault

By Katherine Shin

Sixty-seven years ago, Feres v. United States foreclosed service members
from pursuing claims under the Federal Tort Claims Act (FTCA) for
“injuries incident to their service.” The progeny of case law that has since
developed, the basis for what is known as the Feres doctrine, expanded the
scope of what the Feres Court originally articulated as an injury incident to
service. Now, cadets and midshipmen of military-service academies who
allege that the government (i.e., the administration of military-service
academies) was negligent in handling their sexual assaults are precluded
from bringing an FTCA claim because their injuries are classified as
“incident to their service” under Feres.

Cadets and midshipmen occupy an ambiguous status as both service
members and students of military-service academies. Although cadets and
midshipmen are considered service members under the law, they are also
students of military-service academies where they will graduate with a
bachelor’s degree and incur an active-duty obligation to serve in the officer
corps of the U.S. Armed Forces after they graduate.

This Note focuses on the ambiguous status of cadets and midshipmen and
argues that they are more akin to students of civilian colleges than active-
duty service members. Unlike cadets and midshipmen, civilian students can
raise Title IX claims against their universities for student-on-student sexual
harassment or assault. By comparing how claims fare for cadets and
midshipmen under Feres to the same claims by civilian students under Title
IX, this Note argues that cadets and midshipmen do not have the same
opportunity to achieve justice as civilian students in like circumstances.

This Note additionally examines the legal and policy arguments against
extending the Feres doctrine to cadets and midshipmen. Considering the
evidence that suggests when superiors allow sexual harassment it may lead
to higher instances of sexual harassment and assault in the military ranks,
this Note urges Congress to reexamine the FTCA to limit the scope of the
judicially made Feres doctrine to exclude cadets and midshipmen from
bringing FTCA claims for the negligent mismanagement of their sexual
assaults by academy administration.