Sexual Assault Case Against Former Joint Chiefs Vice Chair Gets Green Light from Appeals Court

A federal appeals court has ruled that a civil sexual assault case filed by former Army Colonel Kathryn Spletstoser against retired Air Force Gen. John Hyten can proceed, dismissing the government's arguments over immunity from lawsuits.
Not only does the ruling allow a lawsuit seeking thousands of dollars in damages from a man who was once one of the most senior officers in the military, it could also pave the way for future similar lawsuits.
At the heart of the Justice Department lawyers' argument was that Spletstoser could not sue Hyten - the former vice chairman of the Joint Chiefs of Staff - because he was protected by a long-standing legal principle known as the Feres Doctrine.
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The Feres Doctrine prevents military personnel from suing the government for injuries sustained as a result of their military service. It was most commonly used to limit medical malpractice lawsuits.
Applied to this case, this meant that the government was effectively arguing that Spletstoser's sexual assaults were an integral part of military service and, consequently, that civilian courts had no power to intervene. Government lawyers told judges at the Ninth Circuit Court of Appeals that "Feres asked the district court to decline [Spletstoser's] invitation to challenge the military's disciplinary investigations and conclusions."
However, the Court of Appeals sided with the District Court's original ruling, noting that it "fails to see how the alleged sexual assault in this case could ever be qualified as an 'incident of [military] service' activity."
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Don Christensen, former Air Force chief prosecutor and current president of the Protect Our Defenders advocacy group, which filed a brief in support of Spletstoser's case, called the 9th Circuit's decision "great."
"It's just common sense, and it's good to see a court using common sense to say that sexual assault is not an incident of service," Christensen said in a phone interview with Military.com. "It's a big day for survivors."
Though he didn't have a total number of cases in mind, Christensen said the Feres Doctrine had "definitely" been used in other sexual assault cases.
The ruling should now set precedent for other cases within the Ninth Circuit's jurisdiction and is "so solid" that it could be "convincing" in other circuits, he said. But to become the law of the country, the Supreme Court would have to rule on the case. Christensen said he expects the Justice Department to call the Supreme Court, but he can see the government is concerned about setting a precedent for the whole country.
Military.com contacted the Justice Department but did not receive comment in time for publication.
Spletstoser first went public with allegations against Hyten after he was named vice chairman of the Joint Chiefs in 2019.
Spletstoser, first with Air Force and Congressional investigators and then in a lawsuit filed in November 2019, alleged there were multiple instances of unwanted kissing, hugging, and rubbing against her while she was serving under Hyten at the U.S. Air Force in 2017. Strategic Command served. In a described incident of Spletstoser, Hyten allegedly visited Spletstoser in her hotel room while they were at a conference in California and hugged her while kissing her, then ejaculated on her.
Hyten has flatly denied the allegations, telling lawmakers during its confirmation hearing that "these allegations are false" and "nothing ever happened."
An Air Force investigation found no corroborating evidence to charge Hyten. After the investigation, the Senate finally confirmed him as vice chairman.
But Spletstoser has maintained the veracity of her allegations, saying along with her supporters that the investigation did not clear Hyten because it is not the job of the Air Force Office of Special Investigations to establish guilt and the investigation was not fully independent, because it was overseen by another general in a small community of Air Force four-stars.
A few months after Hyten's confirmation, Spletstoser filed the civil suit, which has since made its way through the legal system. In the fall of 2020, Hyten and the government sought to have the case dismissed for lack of jurisdiction or transferred to Nebraska - the state where both were stationed at the time of the alleged attack. Neither step was successful, leading to an appeal.
Christensen said the 9th Circuit was "particularly well placed" to accept the arguments from Spletstoser's legal team.
"Some courts are far too quick to rely on critical judgments, saying, 'Well, you know, this is a military matter. We're not qualified to deal with it,'" he said. "That's great when it comes to plans to invade a country or education, but it's nonsensical when it comes to issues like sexual assault."
In its opinion released Thursday, the Court of Appeals found that the Feres Doctrine was far from absolute and in fact required that several details of Spletstoser's allegations go into its decision to rule in its favour.
The court found that "the off-base location speaks against the application of the Feres Doctrine" and that "Spletstoser, preparing for bed in her private hotel room, 'was in the same position as any civilian at the time' ". Both are related to the 2017 incident in the California hotel room while both officers were attending a conference.
"One would hardly conclude that illicit sexual assault is in any way an incident of a 'decision requiring military expertise or judgment,'" the court noted.
"Frankly, it would be a most unusual circumstance for a sexual assault based on the facts alleged by Spletstoser to further any conceivable military purpose and therefore be considered a military service incident."
Both Spletstoser and Hyten have since retired from the military. Hyten declined to pursue a second term as vice chairman of the Joint Chiefs just weeks after the district court declined to drop the lawsuit.
-- Konstantin Toropin can be reached at Konstantin.toropin@military.com. Follow him on Twitter @ktoropin.
-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.
Related: What a General's Court-Martial Means for the Military's "Old Boys" Club
John E Hyten
US Air Force General

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