Justice Clarence Thomas argued on Monday that a former West Point cadet should have been allowed to sue after she was raped at the academy.
The Supreme Court declined to hear the case because of a 71-year-old decision that bars military personnel from suing when the injury was in “incident to” military service. In this case, a woman identified as Jane Doe argued that the Army’s officer training academy had policies that were “inadequate to protect students from sexual violence.”
Thomas wrote that he believed that the court erred in blocking the suit, particularly because the plain text of the Federal Tort Claims Act allowed her to sue. Thomas added that under the court’s current precedent, government employees are blocked from suing in situations in which a civilian would be able to do so.
“Under our precedent, if two Pentagon employees — one civilian and one a servicemember — are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim on the merits,” Thomas wrote.
Thomas wrote that, at the least, the court should have taken up the case to “clarify” in what circumstances a government employee is barred from suit.
“One might be concerned to find out that a student’s rape is considered an injury incident to military service,” Thomas wrote, referencing a lower court judge who expressed a similar opinion.
Doe claimed that a fellow West Point cadet raped her in 2010, during her second year at the academy. Lower courts threw out the case, citing the 1950 decision Feres v. United States, with which Thomas took issue.
In the past, other justices, including Antonin Scalia and Ruth Bader Ginsburg, also criticized the decision.
Prior to the court shutting down this most recent case, a group of prominent legal scholars urged the court to take up the case, arguing that because Doe was only a student at the time, she was not technically in the military.
“The only thing connecting Ms. Doe’s rape to military service was her enrollment at West Point,” the group wrote.
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