From a Supreme Court decision striking down male-only admissions policies at military colleges1 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.’”22 He relied on four of the six factors identified by the Supreme Court in Baker v. Carr23 as relevant in determining if a case involves a political question.24 Regarding the constitutional factors,25 the court found that factor one applied because plaintiffs’ request would require it “to rewrite the [UCMJ] to ensure that ‘convening authorities’ . . . are not . . . associated with the accused.”26 It claimed that such judicial interference would “risk . . . communicating superiority over” the President’s Commander-in-Chief powers and Congress’s power to regulate the armed forces.27 On factor two, the court stated that it lacked standards for resolving plaintiffs’ claims and that such a decision would implicate separation of powers.28 The court also declared that the requested relief implicated prudential factors four and five.29
Third, the court found that the case involved a nonjusticiable military controversy.30 Relying on Fourth Circuit precedent, the court stated that review of military action is confined to where a plaintiff proves that (1) the military violated “applicable statutes or its own regulations,” and (2) the plaintiff exhausted intraservice remedies.31 Judge Lee found the plaintiffs did not allege any policy violation by the military, but rather sought to amend existing policy.32 Further, he held that none of the plaintiffs exhausted intraservice remedies.33 Though Smith’s administrative complaint addressed the sexually hostile environment, it did not allege misconduct by the convening authority, and thus was not exhaustive.34
Finally, the court dismissed for failure to state a claim.35 It found that Title VII36 does not apply to the military and that the plaintiffs had not alleged sufficiently specific facts to support an Administrative Procedure Act37 claim or other statutory challenges.38
The court’s short-shrift application of the standing, political question, and military controversy doctrines further extends an existing pattern of judicial avoidance characterizing intramilitary suits. This treatment highlights how such doctrines fail to account for the circumstances of military sexual assault victims, creating a standard that effectively precludes victims from ever obtaining relief.
The judiciary’s reluctance to wade into military affairs is longstanding. In Feres v. United States,39 the Supreme Court held that the Federal Tort Claims Act40 sovereign immunity waiver does not apply to servicemembers’ claims against the government for injuries incurred incident to service.41 The Feres doctrine has been interpreted broadly, barring military personnel from bringing damages suits, including under federal statutes or the U.S. Constitution,42 against the government and servicemembers regardless of the nature of the injury.43 Notwithstanding courts’ invocation of Feres to avoid military controversies, the doctrine has not been applied to injunctive relief claims.44 Resultantly, when the military inadequately handles a servicemember’s claim, “the only avenues left open . . . are injunctive relief actions in the federal courts.”45 Thus, Baldwin’s high justicia-bility bar for injunctive relief creates an alarming barrier for those seeking recourse for the military’s treatment of sexual assault.
First, the court’s reading of the standing doctrine creates a nearly impossible standard, consistent with judicial reluctance to address military sexual assault.46 Requiring a plaintiff to “assert facts that predict she will be assaulted in the future” to prove injury in fact47 fails to appreciate the nature of these claims or the prevalence of military sexual misconduct. The court found that three of the plaintiffs could not prove injury since they were no longer serving. However, there are several hindrances on servicemembers’ ability to file suit while serving. All of the Baldwin plaintiffs allegedly suffered retaliation,48 as do sixty-two percent of servicewomen who report sexual assault.49 Such retaliation may result in discharge or make it challenging to continue service given that retaliators are often coworkers or within the victim’s chain of command.50 According to one study, female sexual assault or harassment victims are also five to eight times more likely to suffer from post-traumatic stress disorder — like three of the four Baldwin plaintiffs51 — than other female veterans, which frequently leads to separation from service.52 Additionally, maintaining a lawsuit while on active duty is logistically arduous and likely to leave a plaintiff in a difficult position if she is suing due to the conduct of those she serves under or alongside. For example, in two recent cases brought by servicewomen for a sexually hostile environment — both dismissed under Feres53 Klay v. Panetta, 758 F.3d 369 (D.C. Cir. 2014); Cioca v. Rumsfeld, 720 F.3d 505 (4th Cir. 2013). — one-third of the plaintiffs allegedly experienced retaliation for lodging a complaint, and others resigned after being ordered to continue serving under their alleged rapist or his associates.54
Yet, the court required even more than continued service to satisfy standing. Judge Lee held that Baldwin failed to demonstrate future injury because she could not show that she would suffer future sexual assault, despite continued service. This reasoning discounts the prevalence, and thus risk, of exposure to sexual misconduct. Baldwin was allegedly raped as well as sexually assaulted multiple times;55 76% of servicewomen describe sexual harassment as “common or very common,”56 and 23% have experienced unwanted sexual contact.57 To say such evidence of rampant sexual misconduct — both specific to Baldwin and generally — is insufficient to prove future injury constricts standing to when a plaintiff continues to serve and continues to be sexually abused. This narrow construction is consistent with “anxieties about judicial competence that . . . frequently underlie rulings that plaintiffs who seek injunctive remedies against sensitive governmental operations have no standing”58 and functionally requires a victim to choose between removing herself from ongoing harm by resigning and obtaining judicial redress.
Second, the court’s overly expansive application of the political question doctrine creates a broad standard that, like its standing requirement,59 impedes litigation. The analysis of Baker’s constitutional factors unwarrantedly assumed that because the case dealt with the military, it necessarily implicated separation of powers.60 Regarding factor one, the court was not asked to address a matter constitutionally committed to another branch; it would neither have had to “rewrite” or “edit[]” the UCMJ, as Judge Lee claimed,61 nor engage with strategic military decisionmaking or national security matters. Rather, the court was tasked with determining the constitutionality of a statute, a staple competency of the judiciary.62 Contrary to Baldwin’s assertion on factor two,63 courts are capable of resolving the plaintiffs’ claims. Civilian plaintiffs can successfully sue the government for military officials’ tortious conduct — including sexual assault64 — and the judiciary regularly determines the lawfulness of statutes.
The court’s prudential considerations, namely its focus on Baker factors four and five,65 also do not justify deference. Baldwin offers few reasons to adhere to existing policy or why adjudication would disrespect other branches. While the military justice system is well equipped to handle issues of noncompliance with its own policies, it is not better positioned to weigh an individual’s constitutional rights against the military’s discipline interest or to decide the appropriate procedural protections for a sexual assault victim.66 Moreover, the Supreme Court’s recent jurisprudence suggests against finding a political question on prudential grounds.67 The Baldwin court thus stretched the doctrine to cover acts with only a peripheral relationship to another branch’s domain, avoiding the merits68 and immunizing the military from suit.
Finally, the court’s application of Fourth Circuit precedent on nonjusticiable military controversies serves as an additional obstacle to suit. The exhaustion-of-military-remedies constraint puts a heavy burden on plaintiffs to undergo a process they know will be painful and likely ineffective. It requires making a complaint while serving, despite the aforementioned challenges and a deep-seated lack of confidence in the system.69 For example, victims are aware that complaints may be handled by a convening authority who is the victimizer, has other incentives to dismiss claims, or enables retaliation.70 Further, the court distinguished between Smith’s complaint about her sexual assault and her failure to complain about how the convening authority handled her complaint.71 This creates a technical and impractical requirement that after being let down by the military justice system, a serving victim must lodge a complaint about the system’s bias with that same system to preserve a right to civil redress. Though such efforts appear useless, the court did not address the futility exception to exhaustion. Exhaustion is necessary only when an “unused remedy . . . may result in relief. [It is] never required . . . where the outcome would predictably be futile.”72 The lack of engagement with this exception in a case directly dealing with the military justice system’s incompetence illustrates how the court’s reasoning stacks the deck against plaintiffs.
The Supreme Court has made clear that it “has never held . . . that military personnel are barred from all redress”73 and that “the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’”74 Yet, Baldwin’s justiciability framework defies such mandates. In the interest of deference and avoidance, courts leave servicemembers’ safety to the whim of Congress and the Executive, which consistently fail to address military sexual assault.75 Until other branches act, the judiciary’s self-imposed paralysis enables the government to continue denying legal protections to the very people who fight to defend it.