Amicus Curiae Brief — Jane Doe, Petitioner v. United States

No. 20-559

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In The

Supreme Court of the United States

---------------------------------♦---------------------------------

JANE DOE, PETITIONER

v.

UNITED STATES OF AMERICA

---------------------------------♦--------------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

---------------------------------♦--------------------------------BRIEF FOR GRADUATES OF U.S.

SERVICE ACADEMIES AS AMICI CURIAE

SUPPORTING PETITIONER

---------------------------------♦--------------------------------JENNIFER K. BROWN

MORRISON & FOERSTER LLP

250 W. 55th St.

New York, N.Y. 10019

BRIAN R. MATSUI

Counsel of Record

ADAM L. SORENSEN

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 887-8784

BMatsui@mofo.com

Counsel for Amici Curiae

NOVEMBER 30, 2020

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

4

ARGUMENT ........................................................

5

PROPER APPLICATION OF THE FERES DOCTRINE TO SEXUAL ASSAULT IS A MATTER

OF PRESSING NATIONAL IMPORTANCE ....

5

A.

B.

C.

There Is An Unchecked Epidemic Of Sexual Assault And Sexual Harassment At

U.S. Service Academies ..............................

5

Service Academies Have Fostered An Environment That Tolerates And Sometimes

Encourages Sexual Violence Against

Women........................................................

9

The Feres Doctrine Should Not Stand As A

Barrier To Addressing This Vital Issue ....... 15

CONCLUSION..................................................... 19

ii

TABLE OF AUTHORITIES

Page

CASES

Doe 1 v. Baylor Univ.,

240 F. Supp. 3d 646 (W.D. Tex. 2017)......................16

Doe v. Emerson Coll.,

153 F. Supp. 3d 506 (D. Mass. 2015) .......................17

Doe v. Hagenbeck,

98 F. Supp. 3d 672 (S.D.N.Y. 2015),

rev’d in part, 870 F.3d 36 (2d Cir. 2017) .................11

Facchetti v. Bridgewater Coll.,

175 F. Supp. 3d 627 (W.D. Va. 2016) .......................16

Feres v. United States,

340 U.S. 135 (1950) ....................................... 4, 15, 17

Ross v. Univ. of Tulsa,

180 F. Supp. 3d 951 (N.D. Okla. 2016) ....................16

Shank v. Carleton Coll.,

232 F. Supp. 3d 1100 (D. Minn. 2017).....................16

STATUTES

20 U.S.C. § 1681(a)(4) .................................................16

Federal Tort Claims Act .............................................15

OTHER AUTHORITIES

Bruce Keith, The Transformation of West Point

as a Liberal Arts College, 96 Liberal Education

(Spring 2010), https://www.aacu.org///west-pointliberal-arts-college ..................................................17

iii

TABLE OF AUTHORITIES—Continued

Page

Craig Whitlock, McMaster Rebuked by Army in

2015 for His Handling of Sexual Assault

Case, WASH. POST (Mar. 2, 2017), https://www.

washingtonpost.com/investigations/mcmasterrebuked-by-army-in2015-for-his-handling-ofsexual-assault-case/2017/03/02/e8421a8e-fe8b11e6-8ebe-6e0dbe4f2bca_story.html .........................7

Defense Advisory Committee, Report On Investigative Case File Reviews For Military Adult

Penetrative Sexual Offense Cases Closed In

Fiscal Year 2017 (2020), https://dacipad.

whs.mil/images/Public/08-Reports/08_DACIPAD_

CaseReview_Report_20201019_Final_Web.pdf .........9

Dep’t of Def., Annual Report on Sexual Assault

in the Military Fiscal Year 2018 (2019),

https://www.sapr.mil/sites/default/files/DoD_

Annual_Report_on_Sexual_Assault_in_the_

Military.pdf ................................................................8

Dep’t of Def., Annual Report on Sexual Harassment and Violence at the Military Service

Academies Academic Program Year 2010–2011

(2011), https://sapr.mil/public/docs/reports/

FINAL_APY_10-11_MSA_Report.pdf ..................12

Dep’t of Def., Annual Report on Sexual Harassment and Violence at the Military Service

Academies Academic Program Year 2012-2013

(2014), https://www.sapr.mil/public/docs/reports/

FINAL_APY_12-13_MSA_Report.pdf ........................7

iv

TABLE OF AUTHORITIES—Continued

Page

Dep’t of Def., Annual Report on Sexual Harassment and Violence at the Military Service

Academies, Academic Program Year 2017-2018

(2019), https://evawintl.org/wp-content/uploads/

APY17-18_MSA_Report_FINAL.pdf.................. 5, 6, 7

Dep’t of Def., Annual Report on Sexual Harassment and Violence at the Military Service Academies, Academic Program Year 2018-2019

(2020), https://www.sapr.mil/sites/default/files/_

DoD_Annual_Report_on_Sexual_Harassment_

and_Violence_APY18-19.pdf ............................... 6, 10

Dep’t of Def., Directive 6495.01: Sexual Assault

Prevention and Response Program (2008) .............13

Dep’t of Def., Evaluation of the Separation of

Service Members Who Made a Report of Sexual

Assault (2016), https://media.defense.gov/

2016/May/09/2001714241/-1/-1/1/DODIG-2016088.pdf .......................................................................8

Dep’t of Veterans Affairs, Military Sexual Trauma

General Fact Sheet (2020) .........................................8

Derrick Bryson Taylor, West Point Cadet’s Rape

Conviction Is Overturned, Drawing Criticism,

N.Y. TIMES (June 9, 2019), https://www.ny

times.com/2019/06/09/nyregion/west-point-cadetrape-case.html ...........................................................9

Diane L. Rosenfeld, Uncomfortable Conversations: Confronting the Reality of Target Rape

on Campus, 128 HARV. L. REV. F. 359 (2015) .........17

v

TABLE OF AUTHORITIES—Continued

Page

Editorial Board, Charges against midshipmen

raise concern about Naval Academy’s commitment to addressing sexual assault, BALT. SUN

(Nov. 1, 2019), https://www.baltimoresun.com/

opinion/editorial/bs-ed-1103-assault-navalacademy-20191101-vxalielz4zbxnmma-.html........14

Elizabeth Aguilera et al., Roots of Sexual-Abuse

Problem at Air Force Academy Run Deep, DENVER POST, Aug. 17, 2003 ............................................8

Esther B. Fein, The Choice, N.Y. TIMES MAG.

(May 5, 1985), https://www.nytimes.com/1985/

05/05/magazine/the-choice.html ...............................7

Grace Lichtenstein, A Year Later, N.Y. TIMES

(Sept. 11, 1977), https://www.nytimes.com/1977/

09/11/archives/a-year-later-how-women-arefaring-at-the-air-academy.html ................................7

Greta Anderson, More Title IX Lawsuits by Accusers and Accused, INSIDE HIGHER ED (Oct. 3,

2019), https://www.insidehighered.com/news/2019/

10/03/students-look-federal-courts-challengetitle-ix-proceedings .................................................16

Inspector General, Dep’t of Def., Evaluation of

the Department of Defense’s Handling of Incidents of Sexual Assault Against (or Involving)

Cadets at the United States Military Academy

(March 24, 2020) .....................................................10

vi

TABLE OF AUTHORITIES—Continued

Page

Inspector General, Dep’t of Def., Evaluation of

the DoD’s Handling of Incidents of Sexual

Assault Against (or Involving) Cadets at the

United States Air Force Academy (Sept. 30,

2019) .................................................................. 10, 11

James LaPorta, Cadet Run Out of West Point

After Accusing Army’s Star Quarterback of

Rape, The Daily Beast (Dec. 8, 2017), https://

www.thedailybeast.com/cadet-run-out-of-westpoint-accusing-armys-star-quarterback-of-rape ........14

Jay Price, Battling Depression And Suicide

Among Female Veterans, National Public

Radio (May 29, 2018), https://www.npr.org/

2018/05/29/614011243/battling-depressionsuicide-among-female-veterans ..............................15

Michael L. Hansen & Shanthi Nataraj, RAND

Arroyo Center, Identifying Civilian Labor

Market Realities for Army Officers Making

Stay/Leave Decisions (2012), https://www.rand.

org/pubs/research_briefs/RB9653.html ..................18

Service Women’s Action Network, The Mental

Wellness Needs of Military Women: Community Driven Solutions (2018), https://www.service

women.org/wp-content/uploads/2018/02/2018Annual-Summit-Report-Final.compressed.pdf .......15

U.S. Military Academy, Army Regulation 150–1,

United States Military Academy Organization, Administration, and Operation (2019),

https://armypubs.army.mil/epubs/DR_pubs/D

R_a/pdf/web/ARN5862_AR150-1_FINAL.pdf ........18

vii

TABLE OF AUTHORITIES—Continued

Page

U.S. Military Academy at West Point, Academics: Majors and Minors, https://www.westpoint.edu/academics/majors-and-minors (last

visited Nov. 23, 2020) ..............................................17

Valerie A. Stander & Cynthia J. Thomsen, Sexual Harassment and Assault in the U.S. Military: A Review of Policy and Research Trends,

181 Military Medicine 20 (2016) (Supplement 1)........15

BRIEF FOR GRADUATES OF

U.S. SERVICE ACADEMIES

INTEREST OF AMICI CURIAE1

Ashley Anderson is a graduate of the United

States Air Force Academy. She holds a Master’s degree

in philosophy from the University of Texas at Austin

and a J.D. from Yale Law School.

Jennifer Bower is a former U.S. Air Force captain

and a graduate of the United States Air Force Academy.

She has worked in financial crime investigations and

research and analysis roles in support of law enforcement, government, non-governmental organization,

commercial, and Department of Defense clients.

Kezziah Dale is a former U.S. Air Force captain

and a United States Air Force Academy graduate. She

holds a J.D. from Boyd School of Law at UNLV and

specializes in Federal Native American Law.

Allison Doerter is a former U.S. Air Force captain

and a graduate of the United States Air Force Academy.

She has held various project management positions

and is currently working in production agriculture.

No counsel for a party authored this brief in whole or in

part, and no person other than amicus or its counsel made a monetary contribution to its preparation or submission. The parties

received timely notice and have consented to the filing of this

brief.

1

2

Dr. Ellen Haring is a retired U.S. Army colonel and

West Point graduate, and is the Director of Research

and Programs at the Service Women’s Action Network

(SWAN) and a senior fellow at Women in International

Security (WIIS). She has a Master’s degree in Public

Policy and a Ph.D. in Conflict Analysis from George

Mason University. At WIIS, she directs the Combat

Integration Initiative project, and she is an adjunct

associate professor at Georgetown University where

she teaches courses on Human Security and Women,

Peace and Security.

Lindsey Kirchhoff is a former U.S. Air Force captain. She is a graduate and former faculty member of

the United States Air Force Academy. She holds a

Master’s degree in philosophy from Boston College

and is a J.D. candidate at Pepperdine Caruso School

of Law.

Caroline Jacobs is a former U.S. Army lieutenant

and a West Point graduate. She holds a Ph.D. from

Washington State University and is an Advanced Registered Nurse Practitioner.

Sandra Limon is a retired U.S. Army lieutenant

colonel, who graduated from West Point in 1995. Since

retirement she has served in various volunteer leadership positions for her local chapter of Team Red, White

& Blue, a national nonprofit Veteran Support Organization, whose mission is to enrich the lives of America’s

Veterans by improving their physical and mental wellness.

3

Jeanette McMahon retired in 2009 as a U.S. Army

colonel who served 27 years. A West Point graduate of

the Class of 1983, she also earned a Master of Science

Degree in Operations Research and has worked in

various positions in that field for over a decade. She

was selected to stand up West Point’s first Sexual

Assault and Prevention Office, which she managed

from 2005-2009. She has maintained a relationship

with that office, attending its annual conference, and

providing guidance to successive program managers.

She currently teaches and coaches championship

teams at the high school level.

Michelle Olson is a former U.S. Army captain and

West Point graduate. She has worked in various leadership and project management roles for American

Standard, General Electric, Amazon, and Stanford

Health Care.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner persuasively argues that this case presents an ideal opportunity to clarify the bounds of the

Feres Doctrine. Amici support that position and wish

to further explain the ongoing crisis of sexual violence

at the nation’s military service academies. As graduates of those institutions, amici have unique insight

into the culture that has allowed sexual harassment

and assault to run rampant on campus, the lasting

harms it inflicts on students long after they leave or

graduate, and the urgent need to allow those like petitioner to seek relief in court.

Women enrolled in U.S. service academies are subjected to pervasive sexual violence. One in six is sexually assaulted each year. Half are sexually harassed.

But few feel comfortable filing complaints. For good

reason: despite efforts at reform, school leaders have

failed these women at nearly every turn. Some faculty

openly tolerate misogyny. Female students are told

that aggressive sexual advances are inevitable, and

that avoiding rape is their responsibility. Sexual violence is treated like a joke, the subject of marching

songs. Meanwhile, women are advised that reporting

sexual assault—or even seeking counseling for sexual

assault—will ruin their careers. Victims often do not

receive appropriate treatment or counseling. And

when they file formal complaints, victims face the prospect of being hounded out of the academy by fellow

students. Many women leave military service soon

after being assaulted.

5

Jane Doe is a victim of this broken system. She

was raped by a fellow student, after hours, during recreational activity. She did not receive appropriate

treatment. And while her assailant faced no consequences, Doe resigned, forfeiting her hard-won educational opportunities. West Point is a college that, like

any other, is obligated to protect its students. Doe’s

injuries—and the systematic culture of sexual violence

that permitted them to occur—should not be beyond

legal remedy. The petition should be granted.

ARGUMENT

PROPER APPLICATION OF THE FERES DOCTRINE TO SEXUAL ASSAULT IS A MATTER OF

PRESSING NATIONAL IMPORTANCE

A. There Is An Unchecked Epidemic Of Sexual

Assault And Sexual Harassment At U.S. Service Academies

Data from the Department of Defense show an

entrenched pattern of sexual violence against women

at the United States Military, Naval, and Air Force

academies. The figures are stark. About one in six

enrolled women indicated they were sexually assaulted during the 2017-2018 academic term. Dep’t of

Def., Annual Report on Sexual Harassment and Violence at the Military Service Academies, Academic Program Year 2017-2018 18 (2019).2 These numbers have

only worsened: the number of all sexual assaults has

surged by nearly 50 percent in recent years—from

https://evawintl.org/wp-content/uploads/APY17-18_MSA_

Report_FINAL.pdf.

2

6

about 507 assaults in the 2015-2016 academic year

to about 747 during the 2017-2018 academic year.3

Despite those figures, which are based on Defense

Department anonymous surveys, the academies combined received just over 100 reports of such incidents

annually during that period. Id. at 25. And while the

Defense Department only publishes prevalence numbers every other year, there are strong indications that

the incidence of sexual assault has continued to climb:

reported sexual assaults, which comprise only a fraction

of all assaults, rose by a third during the 2018-2019

term. Dep’t of Def., Annual Report on Sexual Harassment and Violence at the Military Service Academies,

Academic Program Year 2018-2019 5 (2020).4

Outright assault is not the only form of sexual

aggression. Sexual harassment is commonplace and

even less frequently reported at the service academies.

Amici can attest that almost every woman is harassed

during her four years at an academy. Official records

bear that out. Among those anonymously surveyed,

half of all women enrolled in the service academies

experienced sexual harassment just during the

2017-2018 academic year. Dep’t of Def. 2017-2018

Report, supra, at 22 (2019). But despite the staggering

prevalence of harassment across all three schools, not

While sexual assault is far less prevalent among men

enrolled in service academies, they have also experienced an

increase in incidents: 3.4 percent of anonymously surveyed male

students experienced sexual assault in 2017-2018, up from 1.4

percent in 2015-2016. Ibid.

4

https://www.sapr.mil/sites/default/files/_DoD_Annual_

Report_on_Sexual_Harassment_and_Violence_APY18-19.pdf.

3

7

one student felt comfortable filing a formal complaint

during the 2017-2018 term. Id. at 5. And informal

complaints of sexual harassment actually dropped

from sixteen complaints in 2016-2017 to just seven in

2017-2018. Ibid.

Victims’ reticence to report reflects an absence of

accountability. Stories of severe harassment frequently appear in the news. Male students have

groped female students and shared sexually explicit

emails referencing them, while school administrators

have done little to punish this inappropriate behavior.

See Dep’t of Def., Annual Report on Sexual Harassment

and Violence at the Military Service Academies Academic Program Year 2012-2013 45, 58 (2014);5 see also

Craig Whitlock, McMaster Rebuked by Army in 2015

for His Handling of Sexual Assault Case, WASH. POST

(Mar. 2, 2017).6

Inadequately deterred, these problems have long

persisted. Women enrolled in service academies have

been subjected to misogynistic degradation and sexual

assault since those institutions first began admitting

women in 1976. See Esther B. Fein, The Choice, N.Y.

TIMES MAG. (May 5, 1985);7 Grace Lichtenstein, A Year

https://www.sapr.mil/public/docs/reports/FINAL_APY_1213_MSA_Report.pdf.

6

https://www.washingtonpost.com/investigations/mcmasterrebuked-by-army-in-2015-for-his-handling-of-sexual-assault-case/

2017/03/02/e8421a8e-fe8b-11e6-8ebe-6e0dbe4f2bca_story.html.

7

https://www.nytimes.com/1985/05/05/magazine/the-choice.

html.

5

8

Later, N.Y. TIMES (Sept. 11, 1977);8 Elizabeth Aguilera

et al., Roots of Sexual-Abuse Problem at Air Force

Academy Run Deep, DENVER POST, Aug. 17, 2003. Amici,

who all graduated from service academies, have witnessed much of this behavior firsthand.

Similar problems await those women who graduate from service academies under these conditions.

Overall, one in three women in service have experienced military sexual trauma. Dep’t of Veterans Affairs, Military Sexual Trauma General Fact Sheet 1

(2020).9 About 6.2 percent of active-duty women in the

U.S. military were sexually assaulted in the year leading up to a 2019 Defense Department study, up from

4.3 percent of women surveyed in 2016. Dep’t of Def.,

Annual Report on Sexual Assault in the Military Fiscal

Year 2018 3 (2019).10 And 40 percent of women who

report sexual assault are separated from service soon

after, many within a year of being attacked. Inspector

General, Dep’t of Def., Evaluation of the Separation of

Service Members Who Made a Report of Sexual Assault

4, 36-38 (2016).11

Meanwhile, the military has failed to adequately

investigate and prosecute assailants among its ranks.

https://www.nytimes.com/1977/09/11/archives/a-year-laterhow-women-are-faring-at-the-air-academy.html.

9

https://www.mentalhealth.va.gov/docs/mst_general_fact

sheet.pdf.

10

https://www.sapr.mil/sites/default/files/DoD_Annual_Report_

on_Sexual_Assault_in_the_Military.pdf.

11

https://media.defense.gov/2016/May/09/2001714241/-1/-1/1/

DODIG-2016-088.pdf.

8

9

Of 1,904 cases of alleged penetrative sexual assault by

active duty service members reviewed in a recent

Defense Department report, more than 70 percent

resulted in no administrative, nonjudicial, or judicial

action against the accused. Defense Advisory Committee, Report On Investigative Case File Reviews For Military Adult Penetrative Sexual Offense Cases Closed

In Fiscal Year 2017 11 (2020).12 And even among those

235 cases that went to trial, most (144) ended in

acquittal. Ibid. In one recent case, a West Point cadet

sentenced to 21 years in prison for raping a fellow student in her sleeping bag had his conviction overturned

because the victim did not scream to alert nearby

cadets to the assault. Derrick Bryson Taylor, West

Point Cadet’s Rape Conviction Is Overturned, Drawing

Criticism, N.Y. TIMES (June 9, 2019).13 The accused

returned to West Point. Ibid.

B. Service Academies Have Fostered An Environment That Tolerates And Sometimes Encourages Sexual Violence Against Women

Rampant sexual assault and harassment at the

service academies is no accident. It is the product of a

toxic culture of misogyny, permitted and sometimes

even encouraged by school administrators and faculty,

and in violation of Defense Department policies. By

the Defense Department’s own account, some leaders

have “endors[ed] toxic behaviors” and display “apath[y]

https://dacipad.whs.mil/images/Public/08-Reports/08_

DACIPAD_CaseReview_Report_20201019_Final_Web.pdf.

13

https://www.nytimes.com/2019/06/09/nyregion/west-pointcadet-rape-case.html.

12

10

to sexual assault and harassment.” Dep’t of Def.

2018-2019 Report, supra, at 5 (2020). Those attitudes

have created a “stereotypical male culture” characterized by an “inability or unwillingness to recognize disrespectful experiences as ‘unacceptable,’ ” where “sexually

harassing behaviors are perceived as lacking severity

or seen as ‘normal,’ ” and where students are deterred

“from seeking assistance, reporting, or intervening

with sexual harassment.” Ibid. Likewise, “[p]erceived

stigma about sexual assault reporting” deters students

from seeking help from academy staff. Id. at 7.

Despite some recent efforts at reform, the Defense

Department has “found little evidence of change in

long-standing attitudes that deter reporting and helpseeking,” and students continue to fear “that reporting

will negatively impact their academic and military

careers.” Id. at 6. The Defense Department’s Office of

Inspector General has repeatedly found that service

academies have failed to follow appropriate practices

relating to sexual assault, including lacking procedures to document informal reports of sexual assault

or referrals to victim support services, and failing to

report incidents of sexual assault to Congress as

required by law. Evaluation of the Department of

Defense’s Handling of Incidents of Sexual Assault

Against (or Involving) Cadets at the United States

Military Academy (March 24, 2020);14 Evaluation of the

DoD’s Handling of Incidents of Sexual Assault Against

https://media.defense.gov/2020/Mar/26/2002270146/-1/-1/1/

DODIG-2020-073.pdf.

14

11

(or Involving) Cadets at the United States Air Force

Academy (Sept. 30, 2019).15

Petitioner’s experience at West Point was the

direct result of these failings. Male cadets felt empowered to be sexually aggressive toward women because

West Point faculty and administrators ignored abusive

behavior and discussed sex in ways that degraded

women. School “faculty openly joked with male cadets

about having sex with female cadets, lament[ed] the

lack of ‘sexual opportunities’ at West Point, and

advis[ed] male cadets to ‘seize any chance to have

sex.’ ” Pet. App. 72a. Students marched through campus singing “team building” songs with violent lyrics

that objectified women. Pet. App. 72a-73a. These

songs included lines such as “I wish that all the ladies

were holes in the road/and I was a dump truck/I’d fill

‘em with my load” and “I wish that all the ladies/were

statues of Venus/and I was a sculptor/I’d break ‘em

with my penis.” Ibid.

While male students were allowed or encouraged

to demean women, female students were informally

advised that reporting sexual assault would destroy

their military careers. Pet. App. 73a. They were

“taught that the prevention of sexual assault was ‘a

woman’s responsibility’ and it was the women’s job to

say ‘no’ when faced with inevitable advances from their

male colleagues.” Doe v. Hagenbeck, 98 F. Supp. 3d 672,

https://media.defense.gov/2019/Oct/02/2002189371/-1/-1/1/

DODIG-2019-125.pdf.

15

12

678 (S.D.N.Y. 2015), rev’d in part, 870 F.3d 36 (2d Cir.

2017); Pet. App. 112a.

Formal guidance was not much better. Minimal

sexual assault training offered by West Point put the

onus on women to say “no,” rather than on men to not

rape, because advances from male colleagues were

“inevitable.” Pet. App. 47a. First and second year

cadets received approximately four hours of “Respect

training” per academic year, only a fraction of which

discussed sexual assault. Pet. App. 111a-112a. In

2011, the Defense Department found that West Point

was “not in compliance” with sexual assault training

policies and was employing a “deficient” prevention

program that failed to meet “the Department’s minimum standard.” Annual Report on Sexual Harassment

and Violence at the Military Service Academies Academic Program Year 2010–2011 at 24, 28 (2011).16

West Point continued to fail petitioner after she

was raped and sought medical attention. She feared

that if she named her assailant, fellow students would

retaliate against her and that the school would punish

her without imposing consequences on her attacker.

Pet. App. 22a; 117a. Her fears were well founded. The

school did not provide appropriate medical treatment

or psychological counseling. She received no offer of

support until two weeks after the rape, when she

received a single email from a counselor. Pet. App.

118a. And despite making two visits to a campus

https://sapr.mil/public/docs/reports/FINAL_APY_10-11_

MSA_Report.pdf.

16

13

health clinic, she never received a forensic examination as required by mandatory regulations. Pet. App.

62a; Dep’t of Def., Directive 6495.01: Sexual Assault

Prevention and Response Program 2, 13 (2008). Fearing retaliation and punishment, Doe chose not to name

her rapist, who faced no consequences for his actions.

Pet. App. 76a.

The facts of this case echo the lived experiences of

many women who have attended the service academies both before and after petitioner. Amici can attest

that the entrenched culture of sexual violence is, again,

nothing new. Since women were first admitted to service academies in 1976, school leaders have proved illequipped to investigate and remedy pervasive sexual

harassment and assault. And at times they have

actively fostered the toxic environment that leads to

harassment and assault. Even good-faith efforts at

reform have fallen short.

When West Point cadet Madeline Lewis accused

the school’s star quarterback of raping her in 2014, the

academy treated her like “a vial of poison,” punishing

her when it concluded that the incident was consensual, while providing the accused with mentoring.

James LaPorta, Cadet Run Out of West Point After

Accusing Army’s Star Quarterback of Rape, The Daily

Beast (Dec. 8, 2017).17 Fellow students began calling

Lewis “the whore of the corps” and told Lewis “she

should be ‘taken out back’ and shot ‘like Old Yeller.’ ”

https://www.thedailybeast.com/cadet-run-out-of-west-pointafter-accusing-armys-star-quarterback-of-rape.

17

14

Ibid. The abuse continued even after Lewis complained to school leadership, and like petitioner, she

eventually left West Point. Ibid.

In another disturbing recent incident, a male student at the Naval Academy broke into dormitories on

four separate occasions, sexually assaulting three fellow students. Editorial Board, Charges against midshipmen raise concern about Naval Academy’s

commitment to addressing sexual assault, BALT. SUN

(Nov. 1, 2019).18 Despite the fact that the incidents

occurred over a 15-month period, the school failed to

prevent the repeated attacks. Ibid.

The academies’ failings have inflicted significant

damage on the victims of sexual violence. Many, like

petitioner, have been forced to abandon their career

aspirations after investing the considerable mental,

academic, and physical labor necessary to gain

entrance to a service academy. What is more, many

victims suffer lasting physical, psychological, and

social harm from sexual assault. “Evidence shows

that long-term effects” of sexual victimization “can be

serious and wide ranging, including physical (e.g.,

chronic health problems, pain, obesity), mental (e.g.,

post-traumatic stress, depression), and behavioral

(e.g., substance abuse, eating disorders, employment

difficulties, relationship problems) consequences.”

Valerie A. Stander & Cynthia J. Thomsen, Sexual

https://www.baltimoresun.com/opinion/editorial/bs-ed-1103sexual-assault-naval-academy-20191101-vxalielz4zbxnm7pwvjc

mia3ma-story.html.

18

15

Harassment and Assault in the U.S. Military: A Review

of Policy and Research Trends, 181 Military Medicine

20, 22 (2016) (Supplement 1). For those who manage

to stay in the military despite such experiences, “operational stressors such as combat exposure may further

add to these cumulative effects.” Ibid. Sexual trauma

and abuse is the aspect of military service most likely

to affect women’s mental health. Service Women’s

Action Network, The Mental Wellness Needs of Military

Women: Community Driven Solutions 13 (2018).19 And

female veterans are almost “250 percent more likely

to kill themselves than civilian women.” Jay Price,

Battling Depression And Suicide Among Female Veterans, National Public Radio (May 29, 2018).20

C. The Feres Doctrine Should Not Stand As A

Barrier To Addressing This Vital Issue

In Feres v. United States, this Court held that the

Federal Tort Claims Act did not waive sovereign

immunity for injuries to service members that “arise

out of or are in the course of activity incident to [military] service.” 340 U.S. 135, 146 (1950). As petitioner

ably explains, that reading is contrary to the text of

the statute, lacks a coherent rationale, and has generated inconsistent results in the courts of appeals. But

even putting those points aside, petitioner’s injury is

far afield from “activity incident to service.” She was

raped by a fellow student while engaging in

https://www.servicewomen.org/wp-content/uploads/2018/

02/2018-Annual-Summit-Report-Final.compressed.pdf.

20

https://www.npr.org/2018/05/29/614011243/battlingdepression-and-suicide-among-female-veterans.

19

16

recreational activity unrelated to any school event or

military service. In this respect, petitioner is similarly

situated to thousands of women across the country.

Faced with inadequate protections, indifferent

administrators, unsuccessful criminal prosecutions,

and under-deterrence, victims of sexual assault on college campuses have increasingly turned to civil litigation against the institutions that have failed to protect

them. Much of that litigation falls under Title IX, from

which the service academies are exempt. See Greta

Anderson, More Title IX Lawsuits by Accusers and

Accused, INSIDE HIGHER ED (Oct. 3, 2019);21 20 U.S.C.

§ 1681(a)(4). But victims of campus sexual assault

have also relied on precisely the kind of claims at issue

here: negligence and contract claims against educational institutions that have fostered an environment

of pervasive sexual violence. See Doe 1 v. Baylor Univ.,

240 F. Supp. 3d 646, 653 (W.D. Tex. 2017) (suit by 10

victims of sexual assault at Baylor University alleging

violations of Title IX, state tort law, and state contract

law in perpetuating “a widespread pattern of discriminatory responses to female students’ reports of sexual

assault”); see also Shank v. Carleton Coll., 232 F. Supp.

3d 1100 (D. Minn. 2017) (Title IX, tort, and contract

claims); Ross v. Univ. of Tulsa, 180 F. Supp. 3d 951

(N.D. Okla. 2016) (Title IX and tort claims); Facchetti

v. Bridgewater Coll., 175 F. Supp. 3d 627 (W.D. Va.

https://www.insidehighered.com/news/2019/10/03/studentslook-federal-courts-challenge-title-ix-proceedings.

21

17

2016) (same); Doe v. Emerson Coll., 153 F. Supp. 3d 506

(D. Mass. 2015) (same).

Those suits are necessary to address the epidemic

of campus sexual assault. Indeed, “the most effective

way to stop campus sexual assault is to confront the

reality of its perpetration, identify the cultural components that enable its normalization, and build the

institutional capacity of schools to prevent and address

it.” Diane L. Rosenfeld, Uncomfortable Conversations:

Confronting the Reality of Target Rape on Campus,

128 HARV. L. REV. F. 359, 359 (2015). When educational institutions prove unable or unwilling to do so

by other means, victims have no choice but to seek

redress in court.

U.S. service academies should not be immune from

that reckoning. They are first and foremost institutions

of higher learning. See, e.g., Bruce Keith, The Transformation of West Point as a Liberal Arts College,

96 Liberal Education (Spring 2010) (“West Point is,

first and foremost, a liberal arts college.”).22 They offer

a wide variety of academic majors, from English to

Environmental Science, and the vast majority of their

curricula is unrelated to military matters. U.S. Military Academy at West Point, Academics: Majors and

Minors.23 They often compete with and compare themselves to the Ivy League schools. They participate in a

https://www.aacu.org/publications-research/periodicals/

transformation-west-point-liberal-arts-college.

23

https://www.westpoint.edu/academics/majors-and-minors.

(last visited Nov. 23, 2020).

22

18

broad range of NCAA Division I and Division II sports,

from golf to volleyball. While they of course provide

military training, students effectively do not incur

binding military service obligations until the beginning of their third year. See U.S. Military Academy,

Army Regulation 150–1, United States Military Academy Organization, Administration, and Operation 25

(2019) (waiving service obligations if students withdraw before beginning their third year of academic

classes).24 And even among those who graduate, many

leave the military as soon as their service obligations

expire. See Michael L. Hansen & Shanthi Nataraj,

RAND Arroyo Center, Identifying Civilian Labor Market Realities for Army Officers Making Stay/Leave

Decisions (2012) (noting that only 44 percent of West

Point commissioned officers stay past their required

eight years of service).25

When combined with the exemption from Title IX,

overbroad application of Feres has left students at

these schools without any way to access the same avenues of judicial relief open to their civilian peers.

Women enrolled in U.S. service academies have been

subject to severe sex discrimination. After more than a

decade of attempted self-correction, the problem has

only gotten worse. And the brightest aspiring officers

have been condemned to an impossible choice: endure

years of sexual aggression or abandon their careers.

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/

ARN5862_AR150-1_FINAL.pdf.

25

https://www.rand.org/pubs/research_briefs/RB9653.html.

24

19

This case presents an opportunity to correct that manifest injustice.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JENNIFER K. BROWN

MORRISON & FOERSTER LLP

250 W. 55th St.

New York, N.Y. 10019

BRIAN R. MATSUI

Counsel of Record

ADAM L. SORENSEN

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 887-8784

BMatsui@mofo.com

Counsel for Amici Curiae

NOVEMBER 30, 2020