Justice Thomas Backs Former West Point Cadet’s Right to Sue Over Alleged Rape

Justice Thomas Backs Former West Point Cadet's Right to Sue Over Alleged Rape clarence thomas sits for photo Associate Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court in Washington, D.C., on April 23, 2021. (Erin Schaff-Pool/Getty Images)

By Theodore Bunker | Monday, 03 May 2021 01:09 PM

Although the U.S. Supreme Court on Monday declined to hear a lawsuit brought by a former West Point cadet who alleges she was raped while a student there, Associate Justice Clarence Thomas wrote in the dissent that the ex-cadet should have been heard.

The court declined to hear the case of a woman, identified as Jane Doe, who sued two senior officers who were administrators at West Point, contending that the school’s policies on sexual assault were inadequate, failed to protect students, and that she herself was raped by a fellow cadet in 2010 during her second year there.

The lower courts dismissed her lawsuit due to a 1950 ruling established that service members cannot sue the government according to the Federal Tort Claims Act of 1946, the law that allows U.S. citizens to sue to government in a federal court. In that case, Feres v United States, the court decided that active-duty military personnel are unable to sue over injuries that are "incident to" their military service, a ruling that Thomas wrote on Monday was wrongly decided.

"As I have previously explained, this approach has little justification," Thomas notes before quoting his 2013 dissent in the case of Lanus v United States, in which he said that "The Act 'renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.'"

The justice adds, "Emphasizing its breadth, the law contains a narrow carve out for military-related claims: those 'arising out of … combatant activities … during time of war.'"

Thomas notes that "This single military exception involving 'combatant activities’ clearly does not apply here. And, other than this specific exception, the law does not 'preclud[e] … suits brought by servicemen' — at least not because of their military status. Feres was wrongly decided; and this case was wrongly decided as a result."

He continues, "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 claim on the merits," Thomas wrote in the dissent. "Nothing in the text of the Act requires this disparate treatment. Nor is there any background rule that federal bus drivers owe a greater duty of care toward workers who are civilian than those who are military."

He added that the plaintiff "could have brought these same claims had she been a civilian contractor employed by West Point instead of a student."

Thomas wrote, "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."

A group of legal experts, including Harvard University’s Laurence Tribe and the University of Texas at Austin’s Steve Vladeck, had called on the court to take up the ex-cadet’s case.

"At the time of her rape, Ms. Doe was not a soldier engaged in combat or on base; she was, in fact, not yet even obliged to enter into military service," they said, according to NBC News. "Nor was Ms. Doe doing anything characteristically 'military.' The only thing connecting Ms. Doe’s rape to military service was her enrollment at West Point. Yet under Feres, that alone was enough to make her rape incident to military service."