No Bivens Liability for Military in Women's Sexual Assault Case

By Gabriella Khorasanee, JD on July 18, 2014 | Last updated on March 21, 2019

Sexual assault against women in the military is an unfortunate reality. As more and more women are speaking out, bringing the issue to national attention, so are more women trying to get legal remedies. Unfortunately, it's not as easy as one would think.

Twelve military women learned the hard way that sometimes justice is not served. Read on to learn more about their legal claims against the Secretary of Defense, and why those claims failed.

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Factual Background

Eleven women, current and former Marines and sailors, were raped while serving in the military, while a twelfth woman suffered severe sexual harassment while active in the military. Adding to the hardship, these women also suffered from retaliation when they reported the sexual assaults to their supervisors. As a result, these women came together to sue the three most recent Secretaries of Defense, Commandants of the Marine Corps, and Secretaries of the Navy, claiming that although they knew of the problem of sexual assault in the military, through their acts and omissions, they failed to take steps to eliminate sexual misconduct in the military.

Plaintiffs' claims were based on one of an implied theory of liability, that is, their causes of action could be implied under the following constitutional provisions: the "Fifth Amendment rights to bodily integrity, due process, and equal protection; a First Amendment right to speak about their assaults without retaliation; and a Seventh Amendment right to have juries try their assailants." This theory rests on Bivens, a Supreme Court case, "which recognized an implied private cause of action for damages against federal officials who violate the Fourth Amendment." However, this theory has only twice been successfully used, and never in the last thirty years.

D.C. Circuit Analysis

The D.C. Circuit affirmed the district court's dismissal of the case, though reluctantly. The court noted that "The Supreme Court has held that military officials are not subject to personal liability under the Constitution for their management decisions, including the choices they make about the discipline, supervision, and control of servicemembers." As such, the court affirmed the district court stating, "adjudication of plaintiffs' claims would require judicial intrusion upon such military matters." It's worth noting that part of the reasoning relied on Congress' "activity in the field" -- the court explained that "Congress is extensively engaged with the problem of sexual assault in the military but has chosen not to create such a cause of action, [and accordingly] we decline to imply a Bivens remedy here."

The retaliation and lack of a legal remedy for our military women who have been sexually assaulted adds insult to injury. Perhaps Congress could take a cue from the D.C. Circuit's opinion and enact legislation to give military women a legal remedy.

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