Francine Banner (Phoenix) has posted to SSRN her article, Immoral Waiver: Judicial Review of Intra-Military Sexual Assault Claims, Lewis & Clark L. Rev. (forthcoming 2013). Here is the abstract:
This essay critiques the application of the Feres doctrine and the policy of judicial deference to military affairs in the context of recent class actions against government and military officials for constitutional violations stemming from sexual assaults in the U.S. military. The Pentagon estimates that 19,000 military sexual assaults occur each year. Yet, in 2011, fewer than two hundred persons were convicted of crimes of sexual violence. In the face of such pervasive and longstanding constitutional violations, this essay argues that the balance of harms weighs heavily in favor of judicial intervention. The piece discusses why, from both legal and justice-based perspectives, the Feres principles are inapplicable to claims of intra-military sexual assault. Further, the essay argues that judicial decisions invalidating the “Don’t Ask, Don’t Tell” policy provide a roadmap for the judiciary in assessing both its proper role in respect of the contemporary armed forces and the institutional obligation to resolve the claims of exceptionally deserving plaintiffs.
The full piece is available here.
Readers also might be interested in Professor Banner’s “It’s Not All Flowers and Daisies”: Masculinity, Heteronormativity and the Obscuring of Lesbian Identity in the Repeal of ‘Don’t Ask, Don’t Tell, 24 Yale J. L. & Feminism 61 (2012).