Being sexually assaulted. Watching your newborn pass away. Dying from misdiagnosed cancer. According to the United States, it’s all in a day’s work for America’s service members. On April 30, Rep. Jackie Speier, D-Calif., tried to change that. We have to join her.
The reason Speier has to fight for better treatment for our fighting men and women dates back to 1950. That year, the Supreme Court decided Feres v. United States. Their decision set a legal precedent called the Feres doctrine, stating that active duty military members cannot sue the government for harm that the military inflicts on them, as long as that harm is “incident to service.” Simply put, troops cannot sue if they are injured by normal occurrences of war, like improvised explosive devices. When Feres is applied in those cases, it makes perfect sense.
However, since Feres’ passage, the term “incident to service” has been expanded to include medical malpractice committed by military doctors, as well as sexual assault committed by military personnel. When Feres was applied to instances such as these, the implications were disturbing. The consequences have been life-or-death, and worse.
Active duty service members cannot sue for military medical malpractice.
In 2014, after giving birth to her daughter at Naval Hospital Bremerton in Washington, Lt. Rebekah Daniel died from excessive blood loss. She was surrounded by doctors and nurses, but they didn’t even try to treat her until an hour and a half after the medical guidelines recommended treatment. Her death was preventable, and was caused by negligent military personnel. Her widowed husband and motherless daughter cannot sue the government.
Active-duty service members cannot sue for military sexual assault.
In 2009, former Airman 1st Class Jessica Hinves was sexually assaulted by a fellow airman at Nellis Air Force Base in Nevada. When she tried to prosecute her attacker, the military judge handling her case admitted that she was violently attacked, and dismissed her case anyway. Her judge knows he’s committing an injustice. Her attacker is free to assault other women. Hinves cannot sue the government.
Democrats and Republicans agree that Feres threatens our troops’ well-being, which threatens our national security.
On the Right, the late Justice Antonin Scalia said Feres “heartily deserves the widespread, almost universal criticism it has received.” On the Left, former Sen. Jim Sasser, D-Tenn., said Feres “makes active duty military personnel into second-class citizens.” This rare glimmer of bipartisan consensus demands attention because Americans haven’t been this politically divided since the Civil War. If Democrats and Republicans can agree on any issue at a time like this, then Americans need to realize that issue has life-or-death consequences.
As we’ve seen, it does, and we must act as soon as possible to correct this injustice.
Two weeks ago, Rep. Jackie Speier, chairwoman of the House Armed Services Subcommittee on Military Personnel, decided to act. She saw Feres hurt someone who her committee is supposed to protect — Sgt. Richard Stayskal, whose terminal cancer went undiagnosed by his military physician. By introducing the Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019, she’s joining the fight for troops’ rights, women’s rights, and human rights. Fortunately, her bill has had bipartisan support from the beginning, when she introduced it jointly with three fellow Democrats and four Republicans. We have to join her, too.
We have to call our congressmen and convince them to overturn the sections of Feres that let sexual assault and medical malpractice go unpunished. Feres supporters say holding officers accountable for assault and malpractice would “threaten the military’s internal command structure.” But a small increase in accountability is worth a huge decrease in sexual assault and medical negligence.
Military commanders need legal protection to make life-or-death decisions on the battlefield. But Feres gives them legal protection to act with blatant disregard for humanity. If we do not lobby Congress to alter the Feres doctrine, more mothers and babies will die needless deaths; more sexual assault survivors will never see justice; more perpetrators will remain free to hurt other service members.
We must tell Congress that sexual assault and wrongful death are not “incident to service.” Our military cannot protect us from predators on the battlefield if we don’t protect our military from predators in their own barracks.
Megan Rohn is a writer in Washington, D.C.
