When "Incident to Service" Silences Survivors: The Military Sexual Trauma Accountability Act

Every day, men and women in uniform make an extraordinary sacrifice. They set aside many of the legal rights the rest of us take for granted in exchange for the privilege of serving their country. For more than 70 years, one legal doctrine has made that sacrifice even steeper than most Americans realize. Now, proposed legislation aims to change that, at least for survivors of military sexual trauma.

A Legal Relic from 1950

To understand why the Military Sexual Trauma Accountability Act matters, you have to understand the Feres Doctrine, and why so many legal scholars, Supreme Court justices, and veterans' advocates have called it one of the most unjust legal precedents in American history.

In 1946, Congress passed the Federal Tort Claims Act (FTCA), which for the first time allowed individuals to sue the U.S. government for certain wrongful acts committed by federal employees. It was a landmark step toward government accountability. But the door did not stay open for long, at least not for service members.

Just four years later, in 1950, the Supreme Court issued its decision in Feres v. United States, ruling that the FTCA does not permit members of the military to sue the government for injuries that arise out of or are in the course of activity incident to military service. The case consolidated three separate lawsuits: one involving the death of a soldier in a barracks fire caused by a defective heating system, one involving a soldier who had a surgical towel negligently left inside his abdomen, and one involving a soldier killed in a military aircraft crash. In all three instances, the Supreme Court closed the courthouse door.

The Court grounded its ruling on policy rationales that do not appear in the text of the FTCA: the distinctively federal nature of military service, the existence of veterans' benefits as an alternative system of compensation, and concern that tort suits could undermine military discipline by drawing command decisions into civilian courtrooms.

Critics have challenged those rationales for decades. In 1987, Justice Antonin Scalia wrote that Feres was wrongly decided and deserved the widespread criticism it had received. More recently, Justice Clarence Thomas has also called for the Court to reconsider the doctrine. Despite these pointed critiques from within the Court itself, Feres has endured.

What Feres Has Meant for Survivors

Over the decades, courts have applied the "incident to service" standard with sweeping breadth. It does not always matter whether the harm occurred on or off base, during training, in housing, or in a medical setting. What sounded like a narrow limitation has become a broad shield against government liability whenever the injured party wears a uniform.

For survivors of military sexual trauma, this has meant something especially painful. Civilian workers generally have legal avenues available when they are harmed in the workplace. Service members often do not. Because of the Feres Doctrine and the limits of civilian employment protections in the uniformed military context, survivors may be left without the same civil remedies available outside the military.

The scale of the problem demands attention. According to reporting on the Department of Defense's fiscal year 2024 sexual assault report, the armed services received 8,195 reports of sexual assault in 2024. Even that number does not capture the full scope of the harm, because sexual assault remains deeply underreported, especially in institutions where survivors may fear retaliation, disbelief, career damage, or loss of control over what happens next.

What the New Bill Would Do

The Military Sexual Trauma Accountability Act, proposed in the 119th Congress by Senators Jeanne Shaheen and John Kennedy, would create a direct exception to the Feres Doctrine for cases involving military sexual trauma.

Under the bill, an individual could bring suit against the United States for injury or death arising from sexual misconduct committed by a fellow service member, combined with the military's negligent failure to prevent or investigate that misconduct, or other wrongful or negligent actions that contributed to it.

The bill's definition of sexual misconduct is broad. It includes rape, sexual assault, aggravated and abusive sexual contact, wrongful broadcast or distribution of intimate visual images, other prohibited sexual conduct under the Uniform Code of Military Justice, and standalone sexual harassment.

Several provisions of the bill are worth highlighting:

• No offset for benefits. A claim under the proposed section could not be reduced by the amount of health care or benefits already received through the VA or the Department of Defense. Survivors would not be penalized for using other available resources.
• An extended statute of limitations. Rather than the standard two-year FTCA filing period, the bill would provide a five-year window. That clock would also be paused during any pending investigation or military proceeding related to the underlying misconduct. Survivors often face institutional pressure, fear of retaliation, and ongoing investigations that make early filing nearly impossible; this provision acknowledges that reality.
• Key FTCA exceptions bypassed. The bill would exclude application of several FTCA exceptions that have historically been used to dismiss service member claims before they could be heard, including the discretionary function exception and the combatant activities exception.

Why This Matters

Congress has already shown it can carve targeted exceptions to the Feres Doctrine when the will exists. The 2020 National Defense Authorization Act created a limited administrative process for medical malpractice claims. The 2022 Camp Lejeune Justice Act opened the courts for those harmed by toxic water contamination. The Military Sexual Trauma Accountability Act follows in that tradition.

Sexual violence within the military is not an aberration. It is a documented, persistent, institutional problem. When survivors have no meaningful legal recourse against an institution that failed to protect them, failed to investigate, or actively covered up what happened, accountability becomes impossible.

The Feres Doctrine was crafted in a different era to address different concerns. It should not function as a shield for sexual misconduct. This bill would create a narrow, necessary path for survivors to seek accountability when the institution that demanded their service failed to protect them.

Those who serve deserve the full protection of the law. The Military Sexual Trauma Accountability Act is a meaningful step toward making that promise real.

Sources

Associated Press: Sex assault reports in the U.S. military fell last year

Military Sexual Trauma Accountability Act bill text