Sex assault class-action lawsuit still on hold - Army News | News from Afghanistan & Iraq - Army Times

Sex assault class-action lawsuit still on hold

Twenty-eight current and former service members who say they were sexually assaulted while in uniform must wait several weeks to learn whether their class-action lawsuit, filed against former Defense Secretaries Donald Rumsfeld and Robert Gates, will move forward.

A federal judge in Alexandria, Va., listened to arguments Friday from government defense lawyers, as well as plaintiffs’ attorney Susan Burke, on a motion to dismiss Cioca v. Rumsfeld, but made no ruling.

U.S. District Court Judge Liam O’Grady said he would issue a ruling on the motion to dismiss “as soon as we can.”

Burke said she believes a ruling could come in two to three weeks.

The plaintiffs seek monetary damages from Rumsfeld and Gates for what they say was the failure of the Pentagon leaders to provide the military with a judicial system that could handle their cases.

The plaintiffs also allege the defense secretaries neglected to implement institutional reforms mandated by Congress to prevent rape and sexual assault in the military.

“No justice was done because of those two men’s personal failure to act as they were ordered by Congress to do,” Burke argued.

Justice Department attorneys representing the government cited Supreme Court cases involving service members who sued senior officials for personal damages or filed suit against the government seeking damages for service-related injuries. In both cases, the court ruled against the plaintiffs.

Justice attorney Marcus Meeks said the Defense Department has taken great strides to alleviate sexual harassment and assault in the ranks, and that Rumsfeld and Gates, who had no personal knowledge of the 28 cases that comprise the class, cannot be held liable.

“There’s long-standing legal precedent that prevents plaintiffs from seeking damages based on allegations relating to leadership,” Meeks said.

A 1950 Supreme Court case, known as the Feres doctrine, effectively bars current or former service members from suing the government for damages for personal injuries during their service.

But Cioca v. Rumsfeld skirts Feres by directly naming the two former defense secretaries in alleging that the plaintiffs’ constitutional rights were violated due to their personal inadequate oversight.

In fiscal 2010, 3,158 sexual assaults were reported to military channels. Of those, 2,617 cases involved victims who were service members, according to Defense Department figures.

Based on the 2010 Workplace and Gender Relations Survey of Active Duty Members, officials estimate more than 19,000 incidents occurred in 2010.

One of the plaintiffs in the lawsuit is Jessica Kenyon, a former Army private who said she was harassed at her first duty station and raped by a National Guard member who was never punished. She said before the hearing that the class group wants to call attention to the plight of service members forced to leave the military for reporting crimes committed against them.

“There’s no oversight or enforcement under the current policies. I was robbed of my chance to serve my country,” she said.

O’Grady gave little indication on his thoughts on the case. He asked the attorneys pointed questions about judicial precedent and at one point grilled Burke on that topic.

“How do I get around what I believe is a clear mandate [from the Supreme Court] to not involve the court in what clearly are military oversight issues?” O’Grady asked.

About a dozen members of the class attended the hearing, as did lawsuit supporters Service Women’s Action Network.

Neither Rumsfeld nor Gates was present.