The Feres Doctrine Denies Rights to Sexual Trauma Victims — How One Soldier is Fighting It

April 26, 2020Maggie BenZvi
Graphic by Gary Stevens/Coffee or Die.

Graphic by Gary Stevens/Coffee or Die.

Erin Scanlon never expected to become the face behind a proposed Congressional bill. All she did was attend a party in Fayetteville, North Carolina, on Sept. 9, 2016. “There was this nonprofit that had this event,” said Scanlon. “That’s when I met him.”

Scanlon exchanged phone numbers with the host of the event, whose name Coffee or Die is omitting due to his acquittal. She and her friend then accepted an invitation back to his apartment. According to Scanlon, they were both uneasy from the start. “It was literally like a warehouse, a shell of a building,” she said. “We got there and it was very much a party groupie vibe. My friend and I were like, ‘This is a terrible situation. We gotta get out of here.’ So we ordered an Uber.”

Before leaving, Scanlon asked the defendant where the bathroom was, and he directed her to a port-a-potty behind the building. “That’s when he followed me,” she said. “It was like an ambush. I opened the port-a-potty door, and he was right there. And I said, ‘Stop, don’t, go find someone else.’ And he didn’t take that.” According to Scanlon, he then threw her on the hood of “an old junkyard car” and assaulted her.

With the 82nd Airborne. Photo courtesy of Erin Scanlon.
With the 82nd Airborne. Photo courtesy of Erin Scanlon.

Scanlon and her friend immediately left the party in distress — they couldn’t find their Uber, so they hopped in one someone else had ordered. Soon after, the defendant texted Scanlon, “Lemme know when your home safe,” to which Scanlon replied, “Do you realize what you did?”

The next morning she texted a friend. “I said, ‘I think this just happened, and I don’t know what to do.’” The friend drove her to the hospital, and she was examined approximately 8 hours after the alleged assault. The rape kit found lacerations on her torso, legs, and genitals.

“I sat on it for a day,” said Scanlon. But on Monday morning, she went to work at Fort Bragg and reported the event to the Sexual Assault Response Coordinator. She was then sent to the Criminal Investigation Command, who told her to report the alleged assault to the Fayetteville police.

Scanlon alleges that she was raped that evening by a former Delta Force operator, but after the case was transferred from the Cumberland County District Attorney’s office to the U.S. Army, he was found not guilty by a court martial. 

Erin Scanlon during U.S. Army training. Photo courtesy of Erin Scanlon.
Erin Scanlon during U.S. Army training. Photo courtesy of Erin Scanlon.

From Scanlon’s perspective, the case was mishandled at Fort Bragg, and she has sued for negligence. But the claim has been denied due to a decades-old Supreme Court decision that instituted the Feres Doctrine, which doesn’t allow active duty military to sue the Department of Defense under the Federal Tort Claims Act.

In 1950, the Supreme Court heard the case Feres v. United States. Their verdict has had monumental effects on the lives of thousands of people over the past 70 years. The original intent of the case was to determine whether active duty service members could sue for negligence due to treatment of injuries sustained in battle, but it has been broadly defined to prevent any tort claims against the Department of Defense.

Scanlon’s lawyer, Natalie Khawam, was the driving force behind the Richard Stayskal Military Medical Malpractice Act, which was passed last year as part of the National Defense Authorization Act. 

Although it did not completely reverse the Feres Doctrine, the Stayskal Act created a pathway for active duty military to make claims against the Department of Defense for medical malpractice. Claims will be submitted directly to the DOD rather than being heard as claims in federal court. This process, as defined specifically in the Stayskal Act, will hold the exact same standards as similar cases would face under the Federal Tort Claims Act.

“I was very into the military, wanted to be combat arms, wanted to be 82nd. And then I wanted nothing to do with it.”

“When I drafted the Richard Stayskal bill, my original draft language had included military sexual assault claims and negligence claims, and unfortunately that was stripped from the original bill,” Khawam said. “So I felt it important to be reintroduced or proposed to Congress.”

Now Scanlon has lent her name to that cause. “We’re fighting so that service members can have the same rights as civilians,” Scanlon said. “If the only way to make people follow their own rules is to sue them and initiate claims for a couple of years, so be it. Civilians can do that. They can sue a police department if they didn’t investigate or they didn’t test their rape kit. So we’re just asking for the same rights.”

It was more than a week after Scanlon reported the assault before the Fayetteville police told her that the defendant had until recently served in the Joint Special Operations Command. That information ratcheted up her anxiety. She was “terrified, when I found out he was in JSOC,” Scanlon said. 

Photo courtesy of Erin Scanlon.
Photo courtesy of Erin Scanlon.

Scanlon began to sleep at different friends’ houses with a pistol and a flashlight at her side. The toll on her mental health greatly affected her ability to work. “If I had a normal job, I would have been fired,” she said. “I was performing so poorly. It took me at least a month of constantly going to the advocates office and having a breakdown, to the point where I wasn’t doing anything, not even getting out of bed. I was barely surviving.” 

Her entire identity had been built around her strong work ethic, and she could no longer hold herself to her previous standards. “I was a leader, an officer,” Scanlon said. “I had all these responsibilities at work and couldn’t take care of myself.”

Scanlon grew up in Scottsdale, Arizona, and attended the University of Arizona as an ROTC cadet. “I wanted to help people,” she said. “I wanted to join the Peace Corps, but then I figured that DOD had more money for their missions. So I went with the military.” 

She loved the experience from the start. One of her instructors had been in special operations. “We bonded over our love for going the extra mile and being extra cool,” Scanlon said. He was the one who convinced her she needed to go to Fort Bragg and join the 82nd Airborne Division. He told her she would be bored elsewhere.

Photo courtesy of Erin Scanlon.
Photo courtesy of Erin Scanlon.

“I had an awesome job,” she recalled. She was a field artillery officer in the 82nd. “We would rig up the cannons, drop them out of the airplane, airplane would swing around again, we would jump after it, then we’d set it up on the drop zone and shoot from the drop zone.” To this day, she sounds thrilled talking about her original assignment. Then everything changed.

The Fayetteville police performed a thorough investigation, and Cumberland County called a grand jury. The defendant was indicted on charges of second-degree forcible rape, second-degree forcible sexual offense, and misdemeanor sexual battery. He pleaded not guilty. One week before the trial was set to begin, jurisdiction over the case was moved from Cumberland County to the Army. The Cumberland County District Attorney’s Office did not respond to Coffee or Die’s request for comment on the transfer of jurisdiction.

Scanlon was on a field exercise with her unit when that change was made. “I think I was so shocked and broken by then I really didn’t know what was going on,” Scanlon said of the decision to proceed with a court martial instead of a civilian trial. “It was just like, whatever, do whatever’s best. Everything I learned was after the fact because they were only telling me what I could handle. They weren’t telling me everything.”

Photo courtesy of Erin Scanlon.
Photo courtesy of Erin Scanlon.

But Scanlon also wasn’t telling her Special Victim Counsel (SVC) everything, at least not until shortly before the trial. There had been a potential witness to the alleged assault, a woman Scanlon later remembered seeing walk around the corner while she was on the hood of the car. 

“I only disclosed that a month before the trial,” Scanlon said. “I told my victim advocate about it, that I remember this girl, and it’s really weighing on my conscience, we need to tell them. I just [was] scared because I didn’t tell them because I didn’t know who she was. And I didn’t say anything, I didn’t yell out for help. So I was afraid they were going to turn that against me. But I said, ‘I can’t hide this forever.’”

Deanne Gerdes, the executive director of Rape Crisis of Cumberland County and Scanlon’s victim advocate, said that Scanlon’s reaction to the alleged assault is very common among rape survivors. “Someone being raped, we all know, is traumatic, period,” Gerdes said. “And when you go through trauma, your body goes into fight-or-flight.”

Erin Scanlon in her U.S. Army dress blues. Photo courtesy of Erin Scanlon.
Erin Scanlon in her U.S. Army dress blues. Photo courtesy of Erin Scanlon.

Gerdes compared the act of rape to a car accident. “That’s a traumatic event, and you do not remember every single detail,” Gerdes said. “Sometimes you remember everything up to impact, but you don’t remember impact, or you don’t remember the moments after impact. Every story is different in what you remember. But it comes down to the neurobiology of the brain. Your body is literally protecting you.”

After Scanlon told her SVC about the witness, the SVC turned that information over to the defense as part of discovery. “And the defense attorney argued that because I told my SVC who then told the prosecution instead of me telling the prosecution directly, that broke our attorney client privilege and that she had to testify,” said Scanlon, still incredulous at that development. “Why wouldn’t I tell the SVC all my deepest and darkest whatever?” According to Scanlon, the SVC was on leave when she was compelled by U.S. Marshals to testify against her.

Scanlon struggled to get immunity before she agreed to testify. “I didn’t trust the military that they’re not going to punish me for something,” she said, referring to a previous unauthorized relationship she had with a noncommissioned officer. “And in the immunity writing, it says Lieutenant Scanlon is the only one who can testify to the events, so she needs immunity so she can testify. And then the defense attorney tried to argue, ‘Well, no, that’s not true, because there was that girl that walked around.’”

Photo courtesy of Erin Scanlon.
Photo courtesy of Erin Scanlon.

The defense produced a female witness who claimed to have seen the sexual act and that it appeared to be consensual. Scanlon said the witness who testified did not fit her description of the woman she saw.

Scanlon also was unable to get a transcript of the trial because it is military policy to not release transcripts when a defendant is acquitted. She did not attend the trial other than the day when she testified, so she has no idea what else was said in court. 

According to reporting by ABC News, the defense suggested that Scanlon lied about being assaulted because she was embarassed, as an officer, to be caught having sex with an enlisted soldier. At the time, Scanlon was a first lieutenant and the defendant was a sergeant first class. When Coffee or Die reached out to the defendant’s attorney, the defendant declined to comment for this story.

Scanlon believes the court martial was mismanaged and filed for $10 million in damages last April. Gerdes, who has seen many rape cases prosecuted, agreed with Scanlon. “Everything about her case was chaotic. Every single step of the way was chaos for this girl,” she said. Scanlon’s claim was denied because of the Feres Doctrine. 

Photo courtesy of Erin Scanlon.
Photo courtesy of Erin Scanlon.

To add insult to injury, that spring Scanlon also began receiving inappropriate text messages from the former lead detective on her case with the Fayetteville police, Paul Matrafailo. Matrafailo was fired from the police force after she filed a complaint. “The whole story is just so bizarre,” Gerdes said, still incredulous. “You just pick one of these, and think, ‘Wow, that is messed up,’ but everything combined — it’s sometimes unbelievable.”

According to a 2019 report from the Department of Defense, 6.2 percent of female service members and 0.7 percent of male service members have experienced some form of sexual assault. This number stayed relatively consistent for the male cohort from the 2016 report (up from 0.6 percent) but indicated a jump from 4.3 percent for females. 

The report also states that only one in three service members who allege they have experienced an assault told a Department of Defense authority. This is slightly higher than the average in the country as a whole, where three out of four rapes go unreported, according to the Rape, Abuse, and Incest National Network. But it is a huge increase from the recorded statistics in 2006, where only one in 14 service members who allege assault reported the event.

As noted above, the problem of rape in the military is not just a female problem. Although the rate of assault is much lower, only 17 percent of male assault survivors report the events to the appropriate military authority.

“When I drafted the Richard Stayskal bill, my original draft language had included military sexual assault claims and negligence claims, and unfortunately that was stripped from the original bill. So I felt it important to be reintroduced or proposed to Congress.”

The military has acknowledged a growth in the number of service members and veterans suffering from what the VA refers to as military sexual trauma (MST). While MST is not technically a mental health diagnosis, the VA recognizes it can be a potential contributing factor to many cases of post-traumatic stress disorder (PTSD). 

Senator Martha McSally, who has openly spoken of her own sexual assault while she served in the Air Force, introduced a bill in the Senate last May called the Combating Military Sexual Assault Act, in an attempt to address this pervasive concern.

Scanlon said that this experience has changed her. “I’m a better person. More empathetic. And less ignorant. Less innocent. I was very into the military, wanted to be combat arms, wanted to be 82nd. And then I wanted nothing to do with it,” she said. “I joined the military to protect the country and instead I have to fight for myself every day just to get out of bed.” She has been medically retired for post-traumatic stress syndrome as a result of military sexual trauma.

But victim advocate Gerdes is amazed by how far Scanlon has come. “There was a time where we were very, very concerned about Erin,” Gerdes said. “She was spiraling down. We did not know how to bring her out of it. So from that very deep, dark place she was at to where she’s at now is truly amazing, and we haven’t seen that a lot with our survivors. They don’t go from really the depths of hell to being such an outspoken advocate.”

Erin Scanlon, right, is working with attorney Natalie Khawam, who has previously passed legislation to change the Feres Doctrine. Photo courtesy of Natalie Khawam.
Erin Scanlon, right, is working with attorney Natalie Khawam, who has previously passed legislation to change the Feres Doctrine, outside of Senator Martha McSally’s office in Washington. Photo courtesy of Natalie Khawam.

Since her story received national coverage through ABC News, Scanlon has been inundated by messages of support and gratitude. “So many supportive people, strangers, messaged me saying, ‘Thank you for sharing this, this happened to me as well, this happened to my sister, my girlfriend. Thank you for sharing. I didn’t want to share, so thank you for sharing.’ So I’m finally at the point where I’m grateful this happened to me, so I can make change to help so many others who don’t feel like they can do it themselves.”

Khawam is optimistic that she will be able to find sponsors for the proposed bill, which would allow for claims to be filed against the United States for negligent or wrongful acts of omission by persons acting on behalf of the government as related to cases of military sexual assault. She has approached Senators Kirsten Gillibrand and Martha McSally, among others. As an Arizona native who saw McSally speak as an ROTC cadet, Scanlon would appreciate her support in particular.

“I definitely feel confident,” Khawam said. “The Richard Stayskal Military Medical Malpractice Act was passed — that was the biggest hump to get over. So now that we were able to get that passed, let’s pass the other issues that remain.”

While Scanlon still intends to sue for damages if the bill is passed, to her it is no longer about just her experience but the experience of many others. 

“It’s not about filing the claim,” she said. “It’s forcing commanders to follow their own rules and support both of their service members in terms of just giving everyone a fair trial and a fair investigation. If perpetrators can actually be held accountable, maybe we can decrease the amount of sexual assaults in the military. In turn, that’s going to leave good soldiers in the military who were normally getting out because of MST and PTSD.”

Maggie BenZvi
Maggie BenZvi

Maggie BenZvi is a contributing editor for Coffee or Die. She holds a bachelor’s degree in political science from the University of Chicago and a master’s degree in human rights from Columbia University, and has worked for the ACLU as well as the International Rescue Committee. She has also completed a summer journalism program at Northwestern University’s Medill School of Journalism. In addition to her work at Coffee or Die, she’s a stay-at-home mom and, notably, does not drink coffee. Got a tip? Get in touch!

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