Sex-Assault Victims Rejected for Disability to Get Review

Military personnel who were the victims of sexual assault can seek disability pay for the psychiatric trauma even if they didn’t officially report the incident, a U.S. appeals court ruled today.

The decision orders the Department of Veterans Affairs to review the rejected disability requests of two women who said they suffered from post-traumatic stress disorder after being assaulted. While acknowledging most victims never report attacks, the agency denied the women disability pay because there was no military record of the assaults supporting the psychiatric diagnoses.

The Department of Defense estimates that fewer than 15 percent of sexual assaults were reported to a military authority between 2006 and 2012. In May, the department estimated 26,000 military men and women may have experienced unwanted sexual contact last year, compared with 2,949 victims identified in criminal reports.

“The Secretary expects that many assaults will not have been reported to authorities, for reasons unrelated to the merits of the claim,” the U.S. Court of Appeals for the Federal Circuit in Washington ruled in a 2-1 decision today. “Penalizing assault victims for that failure would hardly comport with a system in which ‘the importance of systemic fairness and the appearance of fairness carry great weight.’”

In the military, even more than in civilian life, victims are dissuaded from reporting attacks because it often involves telling someone who is professionally associated with the assailant, Circuit Judge Timothy Dyk wrote. As a result, he said, the absence of a report is irrelevant.

Suicide Attempt

One woman said she was beaten and impregnated by a sergeant who was her superior in the 1970s, while the other woman attempted suicide after a sexual assault during her military training in the 1980s. In both incidents, the women told family members and co-workers.

The court ordered the cases to be reviewed again to determine if the women are entitled to disability pay.

“This is a major, major decision,” said Kenneth Carpenter, a lawyer in Topeka, Kansas, who argued on behalf of one of the women. “Anyone who is the victim of any kind of assault or battery is at the mercy of the fact that the reality of military service is ‘don’t ask don’t tell.’”

Legislation Considered

Congress is considering legislation that would make it easier for victims of sexual assault to qualify for disability benefits. The Federal Circuit ruling relates to current regulations, Carpenter said.

Allison Price, a Justice Department spokeswoman, said the government had no comment on the decision.

Circuit Judge Kimberly Moore, the only woman on the three-judge panel, said the lack of a report should be considered in determining whether to compensate the women. It is up to Congress to change that, she said.

“It may well be that a low incidence of reporting would result in little weight being given to the non-reporting, but it doesn’t render that evidence irrelevant,” Moore wrote. “Solicitude for veterans does not justify making up rules as we go along.”

The cases are AZ v. Shinseki, 2012-7046 and AY v. Shinseki, 2012-7048, both U.S. Court of Appeals for the Federal Circuit (Washington).

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