Clarence Thomas disagrees with Supreme Court refusal to hear military rape case

By Don Johnson
Members of the U.S. Supreme Court pose for a group photo at the court in Washington, D.C., on Friday. Seated, from left to right, are Associate Justices Samuel Alito and Clarence Thomas, Chief Justice John Roberts and Associate Justices Stephen Breyer and Sonia Sotomayor. Standing, from left to right, are Associate Justices Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett. Pool Photo by Erin Schaff/UPI | License Photo

May 3 (UPI) -- The U.S. Supreme Court decided Monday it won't hear a suit from a former West Point cadet who says she was sexually assaulted on campus and the academy failed to provide her with "appropriate" support.

The cadet, who was in her second year at the West Point, N.Y., academy, said a fellow cadet raped her in 2010 when they went for a walk late one night. She dropped out three months later.


The woman, named "Jane Doe" in the complaint, sued two senior officers who were West Point administrators and argued that the academy's sexual assault policies failed to protect students. She also said the academy failed to provide her emotional and medical support.

Lower courts have cited a 1950 Supreme Court decision, Feres vs. United States, in dismissing her case. And Monday the high court did the same thing.

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Under the Federal Tort Claims Act of 1946, U.S. citizens can bring federal lawsuits against the government in certain circumstances. The Supreme Court ruled in Feres vs. United States, however, that active-duty service members cannot.

The court, as usual, didn't issue an order in declining the case. Justice Clarence Thomas, however, wrote in dissent that the high court should have heard the case.


He said the 71-year-old case was wrongly decided and the woman in the case "could have brought these same claims had she been a civilian contractor employed by West Point instead of a student."

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"Under our precedent, if two Pentagon employees -- one civilian and one a service member -- 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 in dissent.

"Nothing in the text of the [FTCA] requires this disparate treatment. Nor is there any background rule that federal bus drivers owe a greater duty of care toward workers who are civilian than those who are military.

"At a minimum, we should take up this case to clarify the scope of the immunity we have created."

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