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.

26 Responses to “Scholarship Saturday: A compensation system for military victims”

  1. J.M. says:

    First, an allegation of sexual assault has the CoC turning a blind eye to misconduct. Then the military gave immunity to misconduct. Now a proposal is being floated to pay victims.
    Yet a military member that loses a limb or loved one to medical malpractice is SOL. 

  2. rob klant says:

    J.M., 
    I don’t understand your “SOL” comment:  active-duty members who lose a limb could qualify for TSGLI, as well as other service/VA-administered benefits, and the loss of a loved one to medical malpractice could give rise to an action under the FTCA (or MCA, if OCONUS).
    In theory, civilian victims of sexual assault could also proceed with an FTCA action, although it would take some effort to frame a cause of action which didn’t implicate the “intentional torts” and “discretionary function” exemptions, for example.
    Perhaps it is this situation which influences some to call for an alternate system of compensation.

  3. stewie says:

    Are rape victims routinely being compensated in the civilian system after rape convictions?

  4. The Silver Fox says:

    This is a horrible idea.

  5. rob klant says:

    Stewie,
    It currently seems to depend primarily on state law.
    See e.g. here: https://www.rainn.org/public-policy/legal-resources/compensation-for-rape-survivors
    Upon casual review, though, no state which provides compensation for victims would seem to deny it based on the fact that the assailant was an active-duty military member.
    Perhaps a more modest proposal for reform would be to provide similar DoD-administered benefits to victims who are not otherwise eligible for benefits administered by some other federal/state/local agency.
     
     
     

  6. iKennen says:

    I agree, the glaring omission is why civil suits in tort against the offender in their personal capacity is an insufficient avenue for remedy. A victim could sue an offender for damages, obtain a judgment, and then get an enforcement order to dock pay from DFAS.  The difference, of course, is that the respondent individual would have the right to a jury.  This seems like a proposal that fails to account for the Seventh Amendment.

  7. stewie says:

    Thanks rob, so if the states provide it, and don’t deny it to victims because of the military status of their rapist (and apparently it doesn’t even require a conviction?)…
     
    then why do we need separate compensation again?  If I put my government hat on, this is just one more “motive to fabricate” I have to fight in court.  It might be worth it if victims of military rapists were somehow being excluded from compensation everyone else got, but it doesn’t appear they are.

  8. Don Rehkopf says:

    The article leaves a lot to be desired from a number of angles, but primarily a fundamental failure to understand that our criminal and tort systems are not intertwined, as they are in some of the European judicial systems.  Second, the term “compensation” is simply too overbroad to be meaningful. “Restitution” for out-of-pocket expenses/losses is already provided in both DoDI 1030.2, para. 6.1, and as the author notes, can be made a condition of PTA. Most “victim assistance” programs, to include the military’s, are fairly robust in giving advice about restitution sources.
     
    But, adding compensatory and punitive damages to the equation not only twists State and federal tort concepts, but raises a serious constitutional issue under the Seventh amendment as another commentator noted above.  I can see where 10 USC 1059, could be amended to include compensatory damages that restitution did not cover, provided that there is some due process provision for an accused to challenge this – which is built into most State systems and is part of the federal sentencing laws, viz., 18 USC 3663 and also amending 18 USC 3663A to expressly include convictions via courts-martial.  See also, i18 USC 3771, Crime Victims’ Rights.
     
    Making a bona fide victim whole is both a laudable goal and certainly encompassed within the term “justice.” But, providing a potential financial windfall, i.e., “damages” beyond restitution, is a function of our tort system, which in general works pretty well in getting damage awards for victims of criminal offenses. Enforcing a judgment against an indigent defendant who is in prison, however, is yet another issue – but again, one that any competent “personal injury” attorney will address early on as 99.9% of those civil suits are contingency fee based, so unless there appears to be a viable source of assets for recovery purposes, may de facto limit the process.

  9. Don Rehkopf says:

    PS – for anyone interested, here is a LINK to the brochure given to all purported “victims” in New York, which sets forth a comprehensive list of matters covered by restitution orders.

  10. RTC East says:

    BLUF: Instead of forfeitures being paid to the US Treasury, pay them to a victim.
    Why would it not be sufficient to amend the law and provide that any forfeitures would be paid to a “victim”, as defined by the UCMJ, instead of being paid to the US Treasury?  If there are multiple victims, then they would each get an equal share.  In other words, the only ‘compensation’ a victim would be due would be limited to the extent that there are forfeitures.  In many of the SA cases, forfeitures are in play.  Perhaps the law would also need to be amended to prevent a CA from deferring forfeitures and paying them to a dependent so that the victim would receive the forfeitures. 
    This would be more of a “you get what is available” system rather than a “we determine the value of your loss and award you a certain amount of money” system.  If there are no forfeitures, then a victim would get no money.  Of course, the result is that not every victim will get “compensation”.  Perhaps some state victims’ compensation fund would come into play then.

  11. rob klant says:

    Personally, I don’t disagree Stewie, but the author has a broader premise, i.e that the military is a Petri dish for more extensive social experimentation.   Accused and victims alike are simply her own lab rats.

  12. DCGoneGalt says:

    The fact that sentient humans would would debate whether this is a good idea makes me weep for the future a la Ed Rooney.

  13. stewie says:

    DCGG would you like a gummi bear? I’ve been keeping them warm in my pocket.

  14. DCGoneGalt says:

    Stewie, I didn’t achiev this position in life by letting some snot-nosed punk leave my cheese in the wind.
     
    Les jeux sont faits. Translation: the game is up. Your ass is mine. 

  15. Advocaat says:

    I don’t disagree that actual victims should receive medical care, mental health services, and lost wages that result from a crime.  Military members are fortunate to be taken care of in all three areas.  The author of this article did not (unless I missed it) explain why the government should pay for “pain and suffering” rather than the perpetrators, which is a glaring omission as it is a pipe dream to think the residents of Leavenworth will be able to fund this scheme.  In addition, having helped children who have suffered sexual and physical abuse, I have never once seen money as the correct salve for such wounds.  The MCB is such a bad idea (solves nothing, creates bureaucracy, wastes money) that I’m confident it is destined to become a reality.

  16. Stackhouse says:

    Fed Court already does it for victims of child pornography – and other offenses as well (i think).  It’s the next step.

  17. Phil Cave says:

    Well @DCGG, this is something of an existential subject. Sartre would be proud of you.

  18. ExTC says:

    Deferment of pay being paid to an actual victim I think would create more trials and less PTAs.  Many SA accused that actually take deals do so with a PTA that protects the family with forfeiture or and fine protection.  Yes, they should have thought of this beforehand, but the ability to defer forfs of pay to a family, which is often a second victim, is a big selling point.  Having deferred forfs go to the victim, which the accused often hates by the time the PTA comes, vice his family, will, I suspect, make more accused go to trial.  The rationale will be “what do I have to lose even more.”  Particularly so with lower level SA cases where years in jail probably isn’t in the cards.  Plus what about 120’s that plea as 128? Would the 128/SA victim get the forfs vice the family? The history of forf protection is because the usual male service member was the breadwinner and his misconduct destroyed a family financially. The deferment of pay forfeiture to a family is a valid competing social goal to victim compensation. 

  19. stewie says:

    This seems like an idea that government and defense types can equally find ways to think it good on paper (maybe), bad in reality.

  20. SomeDC says:

    All victims of crime are hurt in some way.  It could be your never recovered iPod or the fact that your spouse was murdered.  We may have a sliding scale of “victimhood” but I don’t think victims of SA are necessarily more deserving of compensation.  I get the point we are a petri dish of social change.  However, if you are going to make the military a laboratory for other things you need to make the military justice system more like the civilians, unanimous jury (of 12), career prosecutors and defense counsel, longer term MJs, broader subpoena power, grand juries with verbatim transcripts (and a GJ that can vote to non bill), how about just a decent fricking court room set up as a court room and some technology that works. 

  21. DCGoneGalt says:

    Stewie:  I don’t think it is good on paper. 
     
    SomeDC:  “[H]ow about . . . some technology that works.”  Are you talking about the Government’s use of video tele-conferencing?  [begin sarcasm] VTC is my favorite.  It is just like Skype/FaceTime (free and reliable) with the minor differences that it requires bulky equipment, costs thousands of dollars, has a several second delay, is prone to random disconnections, and frequently just doesn’t work. 

  22. afjagcapt says:

    Think some of my posts give me away as pretty ‘pro-victim,’ but even I think this is a solution in search of a problem. I’ve talked to A LOT of victims; other than spouses who are concerned about taking care of kids after an accused goes to jail, none have brought up or expected DoD to compensate them for the actions of one rogue service-member. Agree with other posters the remedy here is in civil court.

  23. Defense Wizard says:

    I reject the author’s rejection of the VA disability system as adequate. The VA could end up shelling out several grand per month in disability compensation, for life, and I believe it’s tax free, in addition to preferential hiring with the Federal Government. Creating a new system just for crime victims seems like a solution in search of a problem.

  24. The Sunny Side says:

     
    I, for one, welcome the fodder for impeachment.
     

  25. Anonymous Air Force Deployed Counsel says:

    If the conviction is reversed on appeal, would the government garnish the victim’s wages to repay the accused/recently exonerated?