Ruth's Truth #23: The Feres Doctrine Is Cracking — But Status Still Determines Everything

Christine Dunn is right — and there's another layer practitioners on both sides need to understand. In the McGraw case (Ruth's Truth #17), attorneys Andrew Cobos, Bill Rossick, and Laurie Higginbotham are among those representing victims. Shield of Sisters is on Capitol Hill with McGraw survivors pushing for legislative reform. Protect Our Defenders, through their Pro Bono Legal Network, is supporting victims in high-profile cases and continues filing amicus briefs addressing the doctrine directly.

Some of the victims in the McGraw case are military spouses and some are active duty soldiers — one soldier reported that McGraw photographed her during her own rape kit examination. The distinction matters legally. The soldier standing next to the spouse faces a different legal barrier. So what happens when that survivor walks into your law office, and why does this matter?

The First Question Every Civil Attorney Must Ask

This is new legal ground, and not many civil attorneys are taking these cases yet — but the law is shifting. The facts and processes are complicated; the answers are buried inside military records; and navigating and gaining access to them is challenging.

So the first question every civil attorney needs to ask is this: What was the victim's status at the time of the assault — and what is it right now?

Active duty is different from Title 32. Guard on weekend drill is different from federal orders. Separated or retired is different from still in uniform. Civilian or dependent is different from servicemember. If the claim arises from active service, Feres can still reach some folks even after they've taken off the uniform.

Why Status Determines Everything

That one status question determines which claims exist — against the individual, against the government, or both. It determines whether the crack opened by Spletstoser v. Hyten in the Ninth Circuit is available to your client. It determines whether the December 2024 Merchant Marine Academy FTCA settlement — the first ever for a service academy sexual assault survivor — is relevant precedent or not.

Krista Bordatto's 2025 Gonzaga Law Review article found that less than 0.009% of reported military sexual assaults end in a UCMJ conviction — even though more than 99% of allegations are verified. Increasingly, I am confident that the civil system is going to be where these cases land — and where they should land to effect change. Money talks, and you know the rest.

I am still learning as we all are. But the framework for asking the right questions is what makes the difference for survivors navigating a system that was never designed with them in mind.