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12.13.11

Judge Dismisses ‘Epidemic’ of Rape in Military Case

The landmark case holding former defense secretaries Gates and Rumsfeld accountable for an 'epidemic' of rape within the military ranks has been dismissed. Jesse Ellison reports.

On Tuesday, attorneys arguing for Kori Cioca and the 27 other plaintiffs represented in Cioca v. Rumsfeld learned that U.S. District Judge Liam O’Grady had ruled against them, granting the motion to dismiss filed by Department of Justice attorneys on behalf of the Department of Defense.

“Notwithstanding the troubling nature of the sexual assault allegations alleged in Plaintiffs' Complaint,” O’Grady wrote, “The United States Supreme Court has repeatedly affirmed that the relief Plaintiffs seek … is unavailable in these circumstances.”

The two-page judgment took just under a month for O’Grady to determine. On Nov. 19, in a federal courthouse in Alexandria, Va., he had listened to oral arguments from both sides, and lamented just how difficult this particular case would be. “It’s obviously not a pleasant task to have to look at it from a clinical point of view given the underlying facts of the case,” he said then. “But we will do the best we can.”

Those “underlying facts” include alarming statistics regarding the number of soldier-on-soldier sexual assaults. Women in the military are now more likely to be raped by fellow soldiers than they are to be killed in combat; in 2010, there were 3,158 military sexual assaults reported, according to the Department of Defense’s Sexual Assault Prevention and Response Office—a number that, by the Pentagon’s own admission, represents just 13.5 percent of the estimated 19,000 assaults that actually occurred last year.

But survivors say that the assaults themselves are just the tip of the iceberg: more damaging is the way they’re handled. Victims who report their assaults report being further victimized by the military’s handling of their complaints. Ninety percent of them are eventually involuntarily discharged. In naming Gates and Rumsfeld, the suit holds the top brass responsible for a culture of retaliation that leads to victims being treated as perpetrators. Originally filed in February by Washington attorney Susan Burke, the suit alleges that the defense secretaries' failure to act on the issue amounted to a violation of soldiers’ constitutional rights.

Attorneys for the Department of Defense, led by Marcus Meeks, responded with a motion to dismiss, arguing that per a 1950 Supreme Court ruling, the military cannot be sued by current or former soldiers for injuries incurred in the armed forces, including sexual assaults. “The alleged harms are incident to plaintiffs’ military service,” the defense attorneys argued. In a Dec. 9 filing, released today, Judge O’Grady agreed. “Not even the egregious allegations within Plaintiffs' Complaint will prevent dismissal,” he wrote.

Women in the military are now more likely to be raped by fellow soldiers than they are to be killed in combat.

“Obviously, we’re disappointed,” Burke told The Daily Beast. “We recognize this as tough legal terrain, but we believe there’s a path through it.” In the next month, Burke will file an appeals motion and ask the appellate court to overturn the dismissal. Since filing the original lawsuit, she says she has heard from some 400 other survivors, many of whom could be part of future suits. “We will continue battling the military on this issue until reform occurs,” she said last month. “Or until we die, whichever comes first.”

Kori Cioca, the lead plaintiff in the case, said that while she was disappointed as well, she hasn’t lost hope altogether. “I have faith that something good will come from this,” she said on Tuesday. “Even if it doesn’t go to trial, it has spread awareness and made a lot of changes.

“A lot of people feel defeated. But Ms. Burke told us it was going to be a fight, and it certainly has been,” Cioca continued. “But I do hope that we get our day in court. I want justice—not just for me, for everybody.”