Military Sexual Assault Case Moves Forward In The 9th Circuit

The role that women play in our nation’s security is crucial. From World War I to 1948, their presence in the military grew exponentially.[1] In fact, it was not until June 12, 1948, that the Women’s Armed Services Integration Act was enacted, which allowed women to join any branch of the military.[2] While women today are encouraged to join the armed services, various legal issues arise when acts of sexual assault occur within the confines of the military, especially when the assault occurs by one’s superior officer. This issue is currently ongoing in the groundbreaking case of Katheryn Spletstoser v. John Hyten.[3]

Background Facts of Spletstoser v. Hyten

General John Hyten (“Hyten”) was the 11^th Vice Chairman of the Joint Chiefs of Staff and the nation’s second-highest-ranking military officer until his retirement in November of 2021.[4] Katheryn Spletstoser (“Spletstoser”) accused Hyten of sexually assaulting her over a half a dozen times while working under his direction at the U.S. Strategic Command until he soon retaliated against her.[5][6] Despite these allegations, Hyten’s confirmation hearing for the vice chair of the Joint Chiefs of Staff in 2019 was confirmed.[7] It was said that such allegations had been reviewed and dismissed after an investigation that was conducted by the Air Force Office of Special Investigations.[8] Hyten reiterated that the allegations were false and that the investigation “revealed the truth: Nothing happened ever.”[9] However, the investigation failed to support Spletstoser’s version of the events, yet failed to completely exonerate Hyten, as it ultimately ended without any final determination of guilt or innocence.[10]

After Spletstoser’s allegations were undermined in the Air Force Office of Special Investigations and at the Senate hearings surrounding Hyten’s confirmation, she filed her complaint in a federal court in Los Angeles.[11] Spletstoser stated that “[b]y failing to adequately punish a perpetrator of sexual violence, the [U.S. Department of Defense] sent a message to male employees in all branches of the military that they would continue to tolerate sexual violence.”[12]

Her complaint raised various instances of sexual assault that occurred beginning in January of 2017 when Hyten asked Spletstoser to remain in his hotel room to discuss talking points for the following day but proceeded to force Spletstoser to touch him inappropriately.[13] These incidents heightened over the year 2017 and ultimately led to Hyten entering Spletstoser’s hotel room, holding her down, and forcing himself on her.[14] He soon began to target her at work, which led to investigations that concluded that she had created a toxic work environment, she was later relieved from her position, and was forced into retirement.[15]

In her complaint, Spletstoser requested unspecified monetary damages for loss of wages, reputational damage, emotional distress, and health problems stemming from her allegations.[16]

Legal Precedent Blocking Suits Against the Federal Government

Various legal precedents have been created that block suits specifically pertaining to rape and sexual assault allegations in the context of the military.[17] In particular, the Ninth Circuit Court of Appeals in Becker v. Pena, the court stated, “while the acts of sexual harassment served no military purpose, they were incident to [the plaintiff’s] military service.”[18] While another case mentioned that “even sexual misconduct can be within the scope of employment” in the military.[19] This precedent took effect on Spletstoser’s case when the federal judge in California temporarily tossed out her suit against Hyten, “ruling that a bar on claims considered incident to military service applied.”[20] This bar fell under what is known as the Feres doctrine.[21]

What is the Feres Doctrine?

The Feres doctrine is a legal doctrine which prevents members of the armed forces, who are injured while on active duty from successfully suing the federal government under the Federal Tort Claims Act (FTCA).[22] The doctrine was derived from the United States Supreme Court case, Feres v. United States.[23] The legal effect of the doctrine extends sovereign immunity to tort claims against the government that involve injuries to or the death of service members that are considered to be “incident to military service.”[24]

There are four Johnson[25] factors that are considered related to the Feres doctrine, which includes:

where the act occurred;
the duty status of the plaintiff at the time;
the benefits accruing to the plaintiff due to status as a service member; and
the nature of the activities when the tortious act occurred.[26]

While some of the factors were clearly in favor of Spletstoser, the judge found that some of the factors created ambiguity, especially as to the location of the alleged sexual assaults, and she allowed for Spletstoser to amend her complaint considering the fact-specific requirements to surpass the Feres doctrine.[27]

The Ninth Circuit Allows Spletstoser’s Sexual Assault Suit

After Hyten filed a motion to dismiss, the Ninth Circuit affirmed that Spletstoser’s suit could pursue the sexual assault allegations as Hyten’s claims could in no way “conceivably serve any military purpose,” under the factors required under the Feres Doctrine, meaning that this could not serve as a bar to her lawsuit moving forward.[28] U.S. Circuit Judge Johnnie B. Rawlinson wrote, “[i]t is unimaginable that plaintiff would have been ‘under orders’ to submit to Hyten’s sexual advances, or that she was performing any sort of military mission in conjunction with the alleged assault.”[29]

Analyzing the four factors, beginning with the place where the tortious act occurred—the alleged acts were at a hotel in California open to both military and non-military personnel, finding that the factor weighed against the Feres doctrine.[30] Second, regarding the duty-status, Spletstoser acknowledged that she was on active-duty status, although the act occurred in her personal time when she was not expecting any visitors.[31] The panel also found this to weigh against the application of the Feres doctrine.[32] Third, Spletstoser did not have access to her hotel room solely due to her status as a military service member, and although Spletstoser and Hyten were attending the forum on behalf of a government agency, she was in a private room preparing for bed when the incident occurred, again, finding that the facts were strongly weighed against the Feres doctrine application.[33] Finally, as mentioned above, there was no finding that these allegations could have occurred pursuant to any military service, which ultimately weighed this factor heavily in Spletstoser’s favor.[34] After such findings, the motion to dismiss on behalf of Hyten was denied.

Significance of the Ninth Circuit’s Decision

The Ninth Circuit decision was groundbreaking and has created a significant impact on Spletstoser’s case, as well as many to follow. Counsel for Spletstoser stated that the ruling was “the first decision of its kind, specifically identifying the existence of a sexual assault as a significant factor counseling against the application of a Feres bar” that would “materially impact the Feres analysis for military sexual assault victims.”[35] She further stated that she is “heartened that [Spletstoser] will not be denied access to an Article III court because of an antiquated doctrine, which disproportionately impacts sexual assault victims in all branches of military service.”[36] Various news outlets state that this ruling “may end up setting a precedent . . . allowing military sexual assault survivors to sue not only their assailants but the Defense Department as well.”[37] Lawyers who represent sexual assault victims celebrated this outcome, as it is seen as a “huge win” in the battle for advocacy of survivors.[38]

While this case was set in the Ninth Circuit and can serve as a precedent there, one can hope that the case is influential across the remaining circuits to allow relief for sexual assault survivors in the military to seek relief in some form and prevail over the burdensome Feres doctrine application regarding rape and sexual misconduct.

Written by:

Kayla Sultemeier
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

Meredith Drukker Stratigopoulos
Partner
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

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[5] https://www.washingtonpost.com/lifestyle/style/retired-col-kathy-spletstoser-wasnt-able-to-stop-joint-chiefs-vice-chairman-gen-john-hyten-from-being-confirmed-but-shes-not-done-with-him/2020/07/21/47855cfa-a1c1-11ea-9590-1858a893bd59_story.html

[9] https://www.washingtonpost.com/lifestyle/style/retired-col-kathy-spletstoser-wasnt-able-to-stop-joint-chiefs-vice-chairman-gen-john-hyten-from-being-confirmed-but-shes-not-done-with-him/2020/07/21/47855cfa-a1c1-11ea-9590-1858a893bd59_story.html

[10] https://www.washingtonpost.com/lifestyle/style/retired-col-kathy-spletstoser-wasnt-able-to-stop-joint-chiefs-vice-chairman-gen-john-hyten-from-being-confirmed-but-shes-not-done-with-him/2020/07/21/47855cfa-a1c1-11ea-9590-1858a893bd59_story.html

[11] https://www.washingtonpost.com/lifestyle/style/retired-col-kathy-spletstoser-wasnt-able-to-stop-joint-chiefs-vice-chairman-gen-john-hyten-from-being-confirmed-but-shes-not-done-with-him/2020/07/21/47855cfa-a1c1-11ea-9590-1858a893bd59_story.html

[17] https://www.washingtonpost.com/lifestyle/style/retired-col-kathy-spletstoser-wasnt-able-to-stop-joint-chiefs-vice-chairman-gen-john-hyten-from-being-confirmed-but-shes-not-done-with-him/2020/07/21/47855cfa-a1c1-11ea-9590-1858a893bd59_story.html

[18] https://law.resource.org/pub/us/case/reporter/F3/107/107.F3d.877.95-36172.html

[19] https://www.washingtonpost.com/lifestyle/style/retired-col-kathy-spletstoser-wasnt-able-to-stop-joint-chiefs-vice-chairman-gen-john-hyten-from-being-confirmed-but-shes-not-done-with-him/2020/07/21/47855cfa-a1c1-11ea-9590-1858a893bd59_story.html

[25] https://plus.lexis.com/search/?pdmfid=1530671&crid=936a45d3-5243-44b4-85a6-410519145da3&pdsearchterms=Johnson+v.+United+States%2C+704+F.2d+1431%2C+1436-39+(9th+Cir.+1983)&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdstartin=&pdpsf=&pdqttype=and&pdquerytemplateid=&ecomp=d7ttk&earg=pdsf&prid=67bdcf39-a049-416e-8935-4332ec10d44f