Academic journal article Harvard Law Review

Military Law - Justiciability - Eastern District of Virginia Dismisses Suit against Government for Military Sexual Assaults

Academic journal article Harvard Law Review

Military Law - Justiciability - Eastern District of Virginia Dismisses Suit against Government for Military Sexual Assaults

Article excerpt

MILITARY LAW--JUSTICIABILITY--EASTERN DISTRICT OF VIRGINIA DISMISSES SUIT AGAINST GOVERNMENT FOR MILITARY SEXUAL ASSAULTS.--Baldwin v. Department of Defense, No. 1:15-cv-00424 (E.D. Va. Oct. 14, 2016).

From a Supreme Court decision striking down male-only admissions policies at military colleges (1) to the opening of all military positions to women, female servicemembers have made strides over the last few decades. (2) Nevertheless, servicewomen continue to face significant challenges, including high sexual assault rates. Female soldiers are more likely to be sexually assaulted than killed in combat. (3) The government estimates that in 2012 alone nearly 13,000 servicewomen experienced unwanted sexual contact, with the perpetrator most often being a military coworker or within the victim's chain of command. (4) Yet reporting rates of sexual misconduct are low. (5) This is partly attributable to the military's inadequate handling of complaints, including failures to address retaliation against victims and biases in the adjudication process. (6) Recently, in Baldwin v. Department of Defense, (7) four servicewomen sued the Department of Defense (Department) for fostering a sexually hostile environment in the military and allowing biases in the military justice system, which contributed to their sexual assaults and prevented justice from being served upon the perpetrators. (8) The U.S. District Court for the Eastern District of Virginia dismissed the suit. (9) In doing so, the court foreclosed the only avenue of judicial recourse for military sexual assault victims, avoiding the merits and creating an unattainable standard for future servicemembers challenging military sexual assault policies.

Plaintiffs Alyssa Rodriguez, Carmelita Swain, and Jennifer Smith are former servicewomen, and plaintiff Celina Baldwin serves on active duty. (10) All alleged that they experienced a sexually hostile environment, sexual assault, and/or rape by fellow servicemen. (11) Rodriguez claimed that she complained to military authorities; Smith filed an administrative complaint regarding a sexually hostile environment in her unit, which an investigation corroborated. (12) Such complaints were handled by the military justice system, (13) a congressionally created judicial structure that regulates the military and is governed by the Uniform Code of Military Justice (UCMJ). (14) "Under the [UCMJ], a single person is appointed as a 'convening authority' to oversee [an] investigation and prosecution," functioning akin to a prosecutor and wielding the power to initiate an investigation, file charges, select a hearing officer, and determine if a charge is to be sent to trial. (15) All plaintiffs claimed that the Department "failed to eliminate a sexually hostile environment, failed to take any steps to prevent retaliation against those who report instances of sexual assault, and failed to prohibit those involved [as suspects] in sexual assault cases from becoming 'convening authorities' in sexual assault investigations." (16) The plaintiffs sought injunctive relief to prevent the Department from appointing convening authorities who not only lack legal training, but also have held a command relationship with a relevant party or have engaged in prior sexual misconduct. (17)

Judge Lee granted the Department's motion to dismiss on four grounds. First, he found that the plaintiffs lacked standing under the Lujan standard. (18) He held that they did not demonstrate the imminent future injury required for prospective injunctive relief, as none could "assert facts that predict she will be assaulted in the future." (19) The court noted that three plaintiffs were no longer in the military and thus could not show imminent future injury by military officials. (20) Despite Baldwin's continued service, the claim that she was "susceptible to future physical attacks" was deemed "speculative." (21)

Second, Judge Lee stated that the complaint presented a political question, which "precludes the courts from 'encroaching on issues that the Constitution assigns to [the legislative or executive] branches or that the judiciary is ill-equipped to decide. …

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