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Appeals court bars woman from suing West Point over alleged rape

Over a stinging dissent, a Manhattan federal appeals court on Wednesday barred a woman from suing West Point commanders over an alleged rape and a sexually misogynistic culture she said she had to endure as a cadet before quitting.

The woman, identified only as Jane Doe, said a toxic anti-woman atmosphere led to a fellow cadet assaulting her, but the 2nd U.S. Circuit Court of Appeals said it was up to Congress to address sex harassment at service academies, and allowing lawsuits would undercut military command.

“Civilian courts are ill-equipped to second-guess military decisions regarding basic choices about the discipline, supervision, and control of service members,” wrote Judge Debra Ann Livingston for a 2-1 majority.

Although the ruling was in line with Supreme Court decisions requiring judges to stay out of military disputes for fear of turning combat training and battlefield decisions into litigation traps, dissenting Judge Denny Chin said the doctrine was being misapplied to a college campus.

“When she was raped, she was not in military combat or acting as a soldier or performing military service,” Chin wrote. “Rather, she was simply a student, and her injuries were incident only to her status as a student. When she was raped, she was taking a walk on a college campus with another student, someone she thought was a friend.”

Doe’s lawyers at the Yale Veterans Legal Services Clinic said she was “disappointed” by the ruling, and they are considering asking the full 2nd Circuit court to rehear the case. Government lawyers declined to comment, and West Point did not respond to a request for comment.

The American Civil Liberties Union, which filed a friend of the court brief for Doe, said it was the first time the military deference doctrine was used to keep service academy students from asserting constitutional rights.

“Today’s decision deprives cadets who experience sexual assault the same right to hold their institutions accountable that students at universities across the country enjoy,” said ACLU lawyer Sandra Park.

Doe’s suit said she came from a military family and was one of 200 women among 1,300 cadets in her class in 2010 when she became tipsy from alcohol and was raped by a fellow cadet. Fearing damage to her military future, she filed only an anonymous complaint, and soon left the academy.

In 2013, she sued the government and West Point’s superintendent and commandant, alleging the rape was the product of a sexually aggressive culture they oversaw at West Point that put female cadets at risk of violence and discriminated against them.

The lawsuit cited sexually explicit chants male cadets were encouraged to sing, tolerance for a pattern of sexually aggressive comments to women, different training regimens for men and women, and policies that put the onus on women to resist and avoid sexual assaults.

When a Manhattan federal court trial judge allowed her discrimination claim to proceed against the superintendent and commandant — who have both now left West Point — the government immediately appealed to the 2nd Circuit, challenging it as an improper intrusion on the military.

Livingston said suits for damages for constitutional violations against individual officials are rarely allowed, and doctrines protecting the military were as applicable at West Point as they were for active-duty soldiers.

“Academic and military pursuits are inextricably intertwined at the U.S. Military Academy, which exists for ‘the instruction and preparation for military service’ of Army members,” she wrote.

Chin, in his dissent, cited a 2010 Defense Department survey showing that 51 percent of female cadets at West Point reported sexual harassment, and they deserved the same protection as other students.

“The actions . . . being challenged here do not implicate, except perhaps in the most abstract sense, military discipline or military judgment or military preparation,” he argued. “Instead, Doe’s claims challenge academic decisions and policies.”

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