Included in the most recent issue of the Military Law Review is Julie Dickerson, A Compensation System for Military Victims of Sexual Assault and Harassment, 222 Mil. L. Rev. 211 (Winter 2014) (available here).
The article considers and rejects numerous existing methods to compensate victims of crimes tried by courts-martial, concluding that none are adequate. For instance:
- Civil suits against the Government (under a vicarious liability theory) are barred by Feres. Dickerson, supra, at 218.
- No-fault compensation systems (VA disability and TSGLI) are “limited in scope.” Dickerson, supra, at 220.
- Restitution is dismissed as “unlikely.” Dickerson, supra, at 225.
- State compensation boards are deemed “inadequate.” Dickerson, supra, at 226.
The author then proposes creating a separate “Military Crime Victims Compensation Board” (MCB):
Organizationally, the MCB should be established under the DoD Office of the Under Secretary of Defense for Personnel and Readiness (Sec Def P&R). . . .
After the MCB reviews a victim’s application and determines the compensation owed, the payment order would be sent to the Defense Finance and Accounting Service (DFAS), the victim, and the perpetrator. The DFAS would wait thirty days, and if no notice of appeal is filed, pay the victim and take action to garnish the perpetrator’s pay. To administer appeals, the Sec Def P&R could utilize the services of judges assigned to the Defense Legal Services Agency, which already has an appeal process in place for DFAS claims and security clearances. If the offender is discharged from the service, DFAS should refer the offender’s debts to the Treasury Department for collection through the Internal Revenue Service (IRS).
Dickerson, supra, at 241. Notably, the author acknowledges that this creates a financial incentive to make an allegation against a service member:
[H]aving the opportunity to apply for compensation within the military will incentivize more victims to report either formally or informally to the authorities.
Dickerson, supra, at 240-41. Of course, such an incentive is equally present for legitimate and false allegations. The article addresses this issue only briefly and tangentially:
Though the MCB provides compensation as a post-appellate process, some defense attorneys may try to use the process during the cross-examination of a victim at criminal trials, which may occur in courts-martial, state courts, or U.S. district courts, depending on the location of the offense, arguing, essentially, that the possibility of compensation creates perverse incentives for the victim to file a false report. Even so, the defense’s argument would not necessarily be persuasive or decisive. Victims have been able to sue perpetrators in tort after criminal trials for decades and prosecutors have nevertheless been able to obtain convictions.
Dickerson, supra, at 259-60.
There are two additional notable aspects to the article.
First, the author does not address the availability of a civil suit against the offender alone. A purely civil remedy is rejected because “the Feres doctrine prevents servicemembers who are sexually harassed or assaulted by another soldier from holding the government vicariously liable under the Federal Tort Claims Act (FTCA).” Dickerson, supra, at 218 (emphasis added). But there’s no compelling rationale offered to justify making the Government (meaning the taxpayer) liable for the crimes of individual service members. And so, while there are many legitimate victims who are deserving of compensation, the author’s proposal reads more like a money grab than a serious effort to address a legitimate shortfall in services already provided to military crime victims.
Second, the author suggests that the MCB make financial awards for a victim’s pain and suffering:
Unlike the state compensation boards, however, the MCB would also compensate eligible victims for pain and suffering.
Dickerson, supra, at 245. A footnote adds:
It may appear unfair that military victims would have access to pain and suffering damages while many civilian victims do not have access to the same from the state compensation boards. The solution to this apparent inequality remains a topic of concern. Even so, should the military successfully implement a compensation board providing scheduled pain and suffering, the states would hopefully adopt the military’s model and begin offering comparable compensation opportunities. This seems increasingly possible as more states reshape their restitution collection policies into effective sources of crime compensation board funding. Again, it is important to remember that, under certain circumstances, civilians may have the opportunity to sue their perpetrator’s employer for pain and suffering – an opportunity military victims do not have.
Dickerson, supra, at 245 n.190.
This seems totally backwards to me. It is the states – not the military – that are the Petri dishes of American law.