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The Government will pay $975,000 to Colonel Kathryn Spletstoser to settle her sexual assault case against former Vice Chairman of the Joint Chiefs of Staff, retired 4-Star General John Hyten.
The near million-dollar settlement stands out as the only known settlement paid by the government for a sexual assault case brought against a member of the United States Military.
In 2019 Army Colonel Kathryn Spletstoser, now retired, brought the case against General John Hyten (ret.), alleging sexual assault and battery when he was the military’s second-highest ranking officer. Hyten, who now works with Jeff Bezos’ Blue Origin, was represented by the U.S. Attorney’s Office throughout the litigation.
Once approved by the Court, the settlement will resolve Spletstoser’s case, which is now pending in the United States District Court for the Central District of California, before the Honorable Michael W. Fitzgerald.
Despite continued reports of increasing sexual assault in the military, litigation against military members remains scarce and is frequently barred under the Feres Doctrine.
Feres was created by the Supreme Court in the 1950s, and prevents members of the military from bringing lawsuits to recover for injuries “incident to military service” for any reason. The expansive nature of the Feres Doctrine routinely bars servicemembers from bringing cases of sexual assault against perpetrators who are also members of the armed services. This is because injuries sustained from military sexual assault are considered “incident to military service” and, under the Feres Doctrine, the military perpetrators are immune from civil suit.
Colonel Don Christensen (ret), former Air Force Prosecutor and frequent critic of the Feres Doctrine, said “The military almost never prosecutes those accused of rape or sexual assault and usually loses on the rare occasions it does. Frustrated by the lack of accountability, sexual assault survivors serving their country have turned to civil courts to hold their offenders accountable –those efforts have failed until today.”
Spletstoser’s historic settlement was made possible after the 9th Circuit Court of Appeals in California refused to reverse a District Court Order denying the U.S. Government and General Hyten’s motions to dismiss Spletstoser’s Federal Complaint under the Feres Doctrine.
The U.S. Government and General Hyten appealed the District Court Order to the 9th Circuit. They argued Spletstoser’s sexual assault allegations were “incident to” her military service and therefore both the U.S. Government and General Hyten were immune from suit under Feres.
Attorney for Colonel Spletstoser, Ariel E. Solomon argued that no party was immune from suit under Feres and that the Doctrine was never intended to be an absolute bar to servicemembers who brought suit against the United States Military or fellow servicemembers for sexual assault. She argued Spletstoser’s case was the archetypal example of the limitations surrounding Feres immunity, and denying a sexual assault victim’s access to an Article III Court should “weigh heavy on the Court’s conscience.”
The 9th Circuit agreed. “It 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,” said United States Circuit Judge Johnnie B. Rawlinson, who wrote the Opinion. “We also reiterate that the existence of a sexual assault allegation weighed heavily in the analysis,” the Court went on to emphasize that “we cannot fathom how the alleged sexual assault in this case could ever be considered an activity incident to military service.”
Although the United States Office of the Solicitor General did not seek further review of the 9th Circuit Decision in Spletstoser’s favor, Lisa Blatt an appellate attorney representing General Hyten, filed a Petition for Rehearing and Rehearing En Banc, asking the 9th Circuit to reverse itself and to find that Spletstoser’s sexual assault injuries were incident to military service; and therefore General Hyten would be immune from suit under the Feres Doctrine.
Both requests were denied.
Ms. Blatt, a “liberal feminist lawyer” who has argued before the United States Supreme Court more than any other woman, did not file a Petition for Writ of Certiorari asking the Supreme Court to review the 9th Circuit’s denial.
Shortly thereafter, the settlement,described by Colonel Christensen (ret.) as “unprecedented,” was reached.
“Colonel Spletstoser is a combat veteran, who represented the United States with grit and grace throughout her military career. It was our honor to represent her,” said Ariel E. Solomon. “This victory is an important step in the right direction, however, to obtain justice for other countless survivors of military sexual trauma, Congress must act.”
Solomon recommends that “Congress create a private right of action for military sexual assault victims, by enacting legislation that carves out an exception to the Feres Doctrine, making clear that sexual assault is never incident to military service. This approach preserves certain components of the impenetrable Doctrine while permitting military sexual assault survivors to file lawsuits and recover for their injuries.”
Solomon explained “the legislation would also protect the Military –which is dishonored each and every time the U.S. Attorney’s Office stands up, straight faced, with taxpayer dollars, to argue injuries from sexual assault are incident to military service.”
Attorneys who represented the United States Government and General John Hyten (ret) are Reginald M. Skinner, Richard Montague, and Lowell Sturgill, Jr.