4th Circuit won’t revive military sex assault suit

RICHMOND, Va.— A federal appeals court refused Tuesday to revive a lawsuit against two former defense secretaries by 28 military members and veterans who said they were victims of sexual assault.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously affirmed a December 2011 dismissal of the case. The lawsuit alleged that former defense secretaries Donald Rumsfeld and Robert Gates fostered a culture that allowed rapists to thrive and punished victims for filing complaints against their attackers.

The appeals court acknowledged the severity of the allegations and stressed that it was not implying that the conduct described in the complaint was acceptable. However, the panel affirmed U.S. District Judge Liam O’Grady’s ruling, which said the judiciary should not intervene in matters involving military discipline.

In one incident cited in the lawsuit, an Army Reservist said two male colleagues raped her in Iraq and videotaped the attack. She complained to authorities but says charges weren’t filed because the commander did not think she acted like a rape victim. In another incident, an Army sergeant alleged that after being raped by a colleague she sought counsel from a military chaplain who told her it must have been God’s will.

The Richmond-based appeals court is the first federal appeals court to rule on the issue, but the panel noted that its decision is consistent with a ruling in February by a federal judge in Washington, D.C., on a nearly identical lawsuit filed against then-Secretary of Defense Leon Panetta.

In the case before the 4th Circuit, the plaintiffs sought money damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, a 1971 Supreme Court decision. Bivens established a right to sue for damages for constitutional violations committed by federal agents.

However, the Supreme Court has refused to extend Bivens to claims that “arise out of” or are “incident to” military service.

The plaintiffs — 25 women and three men — argued that their claims did not “arise out of” and were not “incident to” military service, and therefore their lawsuit should not be barred.

“Specifically, they assert that ‘Defendants have not made any evidentiary showing that rape and sexual assault, and the resultant failures to punish the perpetrators, served a military mission’,” Judge G. Steven Agee wrote for the panel.

However, that argument indicated that the plaintiffs “fundamentally misapprehend the nature of the ‘incident to service’ rule,” Agee wrote.

“[T]he complaint raises allegations that go directly to the management of the military, calling into question basic choices about the discipline, supervision, and control of service members,” the court concluded, quoting from U.S. v. Shearer, a 1985 decision by the U.S. Supreme Court.

The case decided Tuesday is Cioca et al. v. Rumsfeld, No. 12-1065, 4th Circuit.

The Associated Press contributed to this report.

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