It’s been more than two years since the murder of Vanessa Guillén, a 20-year-old soldier in the U.S. Army who was stationed at Fort Hood in Killeen. Investigators believe she was killed by another soldier at the base.
Before her death, Guillén told family members that she was being sexually harassed at work, which the Army confirmed. The family is now seeking $35 million in damages from the U.S. government and aims to prove that Guillén was sexually assaulted. To win, their lawyers will have to overcome a longstanding legal doctrine known as the Feres doctrine that protects the military and its members from these kinds of lawsuits.
Rachel VanLandingham, a professor of law specializing in national security and military law at Southwestern Law School, spoke to the Texas Standard about the challenges the lawsuit faces.
This transcript has been edited lightly for clarity:
Texas Standard: Advocates trying to push to end sexual violence in the military say that the Defense Department has for decades used a particular legal doctrine to stop members of the military from suing for sexual assault and sexual harassment. Could you say more about the Feres doctrine?
Rachel VanLandingham: Sure. So it’s not just the Department of Defense. It’s actually our federal courts and primarily the Supreme Court that has shielded – provided what’s called intramilitary immunity – for negligence and wrongdoing by military members in the military itself, providing immunity from being sued under general tort law. A civilian employer could be sued for something like, well, the most classic example is medical malpractice. Whereas since 1950, the military cannot be because the Supreme Court said, “Hey, look, the military has its own decision making. We don’t want to mess with that. The military also has its own methods of remedy, different channels to handle allegations of wrongdoing. We’re going to leave the military alone.”
And despite the fact that Congress itself passed this law, the Federal Tort Claims Act, right after World War II to say, “hey, look, we think the government should be sued for its negligence and wrongdoing, just like a civilian employee in particular circumstances,” right, to make people whole. But the Supreme Court took a very small exception within that law and made it this huge roadblock against suing the military for things like leaving a towel in someone’s knee when they’re being operated on, for example.
Obviously Guillén’s attorneys believe that they have a case here – but with the Feres doctrine in place since the 1950s, what’s changed?
Well, the primary change has been really a pivotal decision by the 9th Circuit here in California regarding whether or not sexual assault is considered incident to service. Because the way this Feres doctrine works, this bar to suing the military by a military member, is that it says, look, any injury that has arisen in the course of, or incident to, service – because you’re in the military, basically – you’re barred from bringing it.
And so there have been numerous cases, including a case emanating from the famous sexual harassment and assault case Tailhook, back in the early 90s that said, hey, look, that was incident to service. You can’t sue for that. You have no redress for getting money damages in a court of law from the United States government for the sexual assault and harassment that happened in Tailhook.
But a few weeks ago and for the first time, you actually have a court saying, oh, I don’t think this case should be dismissed because of this Feres bar, because we don’t see how a sexual assault can be “incident to service.” This was on their personal time. How in the world can egregious harm such as sexual assault be something that’s considered part of their military service? So the court said, hey, look, let the suit go on.
You’re talking about a 9th Circuit opinion; we’re in the 5th Circuit. Will that control here?
So technically, Vanessa Guillén’s family did not file suit against the federal government yet; there is an administrative process [that] means they had to bring a claim against the federal government, which is what they did. The Department of Defense, the government has six months to resolve that claim. Then the Guillén family can bring suit if they so choose. But one of the family members mentioned that they would bring it in California because an incident of sexual harassment – not assault, but sexual harassment – occurred on a training base here in California.
That, I have to say, is going to make it difficult, I think, for the family to be successful in any suit, because the seminal case that was just decided a few weeks ago dealt with off-duty conduct in a civilian hotel and not some kind of sexual harassment that occurred on a military training base. So I think it’s very, very different. And I think folks need to be cautioned against seeing this 9th Circuit case as too much of a sea change, especially because it can still be overruled by the entire 9th Circuit … and it can be overruled by the Supreme Court.
