December 14, 2011
Sexual Violence in the Military: Not a Judicial Matter
The UK's Guardian has a lengthy and worth reading report entitled " Rape in the US military: America's dirty little secret" with the subtitle, "A female soldier in Iraq is more likely to be attacked by a fellow soldier than killed by enemy fire." The Guardian's article mentions a lawsuit of 28 plaintiffs "who claim to have been subjected to sexual assaults while serving in the armed force" against Donald Rumsfeld and Robert Gates "for a culture of punishment against the women and men who report sex crimes and a failure to prosecute the offenders."
In a 2 page opinion, Judge Liam O'Grady dismissed that lawsuit the same day as the Guardian article. Cioca v. Rumsfeld garnered much attention when it was filed in February, including a NYT article and a widely distributed video of Kori Cioca:
The judge's order concluded that Cioca and the other plaintiffs do not have a Bivens action (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)), because such a remedy is not available when '"special factors counseling hesitation'" are present, and the "unique disciplinary structure of the military establishment" is a "special factor" that "counsels against judicial intrusion." In short "congressionally uninvited intrusion into military affairs by the judiciary is inappropriate."
This same reasoning of military deference was once prominent in challenges to the military's sexual orientation policy of "don't ask, don't tell" (DADT). More recently, of course, the courts were much less deferential, including the Ninth Circuit's injunction against the policy earlier this year, before the policy was repealed, and the Ninth Circuit's dismissal of the case as moot. Yet as we noted, the Ninth Circuit did more than dismiss the case as moot, it specifically stated that it
"vacate[d] the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect."
Thus, those DADT findings overcoming judicial deference to the military are declared to be void, although it does seem that they might not be entirely irrelevant.
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