Troops’ sexual assault lawsuit dismissed - Army News | News from Afghanistan & Iraq - Army Times

Troops’ sexual assault lawsuit dismissed

A federal judge has dismissed a class action lawsuit filed by 28 current and former service members for sexual assaults they say happened while they were in uniform serving under defense secretaries Donald Rumsfeld and Robert Gates.

U.S. District Court Judge Liam O’Grady ordered dismissal of the case, filed against the two former secretaries, Dec. 9. He called the sexual assault allegations “troubling,” but said previous cases and Supreme Court decisions have advised against judicial involvement in cases of military discipline.

Quoting the case Gilligan v. Morgan, decided in 1973 by the U.S. Supreme Court, O’Grady wrote “matters of military discipline should be left to the ‘political branches directly responsible — as the judicial branch is not — to the electoral process.’”

“Not even the egregious allegations within the plaintiff’s complaint will prevent dismissal,” O’Grady wrote.

The troops sought monetary damages from Rumsfeld and Gates for what they say was a failure by the Pentagon leaders to provide the military with a judicial system that could handle the cases and leadership that would prevent rape and sexual assault among troops.

In arguing for dismissal, Justice Department attorneys cited Supreme Court cases decided in favor of the government that involved service members who sued senior officials for personal damages or filed suit against the government seeking damages for service-related injuries as reasons to dismiss.

Susan Burke, attorney for the plaintiffs, said Tuesday she will appeal the decision.

“We are not surprised, but we are disappointed,” Burke said.

The case, Cioca v. Rumsfeld, involves 28 plaintiffs — 25 women and three men — who say they were raped, sexually assaulted or harassed while in the military and their cases were mishandled or dismissed by their units. Several plaintiffs said they were harassed or forced to leave the military after the attacks and their alleged attackers received minimal punishment at best.

Burke said they will continue with the case because “we do not believe that rape and sexual assault should be deemed incidental to serving in the military.”

“We went into it knowing it was tough legal terrain. We may have to take this to the Supreme Court to get justice for these rape survivors,” Burke said.

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.

In arguing for the motion to dismiss, Justice Department attorney Marcus Meeks said the military affords “appropriate protection” to service members, and Gates and Rumsfeld “took significant steps to reduce sexual assaults within the military, provide enhanced resources to facilitate investigation and prosecution where appropriate and develop comprehensive support system for victims of sexual assault.”

Justice Department spokesman Charles Miller declined to comment on O’Grady’s decision.