Former Coast Guard Seamen Kori Cioca, left, and Panayiota Bertzikis are plaintiffs in a class-action suit against Pentagon officials seeking change in the military's handling of rape and sexual assault cases. (Cliff Owen / Associated Press)
The government is fighting a lawsuit filed by 28 former service members who claim they were raped, sexually assaulted or harassed while on military duty.
The lawsuit claims former defense secretaries Robert Gates and Donald Rumsfeld violated the constitutional rights of service members when they ran institutions in which:
• Military personnel were not protected from sexual harassment and assault.
• Perpetrators were promoted and congressionally mandated reforms were mocked.
• The plaintiffs and other victims were openly retaliated against and "ordered to keep quiet" about their colleagues' crimes.
A federal judge in Alexandria, Va., listened to arguments Nov. 18 from government defense lawyers, as well as plaintiffs' attorney Susan Burke, on a motion to dismiss Cioca v. Rumsfeld, but made no ruling.
U.S. District Judge Liam O'Grady said he would issue a ruling on the motion to dismiss "as soon as we can." Burke said she believes a ruling could come in two to three weeks.
Of the plaintiffs, five women and one man were or are enlisted Navy members, and two women are former Coast Guardsmen.
"If you look at just the last 10 years, there have been numerous instances of rapes and sexual assaults and they [have] been poorly handled," said Susan Burke, the Washington, D.C. attorney for the plaintiffs.
"The retaliation is widespread; there are efforts to blame the victim. Many of the victims are drummed out of military service," she said.
Several plaintiffs said their attackers received minimal punishment at best and may have gone on to be promoted.
The Justice Department has argued — contrary to the lawsuit's claims — the military affords "appropriate protection" to service members. However, in motion filed Nov. 14 in federal court, it called the lawsuit's allegations "deeply troubling."
The government, in its written response, asserts Gates and Rumsfeld, "took significant steps to reduce sexual assaults within the military, provide enhanced resources to facilitate investigation and prosecution, where appropriate, and develop a comprehensive support system for victims of sexual assault."
According to the Pentagon's 2010 statistics, of the 1,025 people referred for disciplinary action, 51 percent were charged under military law, 25 percent received nonjudicial punishments, 11 percent received administrative discharges and 13 were subject to "other administrative action."
In 2010 Pentagon statistics, 56 percent of reports of sexual assault involved service member-on-service member allegations. The suspects were men 89 percent of the time, E-1 to E-4 48 percent of the time, E-5 to E-9 27 percent of the time and officers 3 percent of the time.
The victims are E-1 to E-4 63 percent of the time, E-5 to E-9 only 9 percent of the time, and are officers less than 2 percent of the time.
The victims of sexual assault in the military are not always female. According the Pentagon's 2010 statistics, 10 percent to 15 percent of victims who reported their assault were male.
Among the plaintiffs in the lawsuit:
• Lead plaintiff Kori Cioca, who was a seaman in the Coast Guard from 2005 to 2007, claims she was raped in 2005 by a superior — something that falls outside of the Defense Department's jurisdiction, although the Coast Guard uses a similar judicial system.
She said she was threatened with court-martial for lying if she brought rape charges against the superior, who she said pulled her into his stateroom and raped her. She said her superior ultimately was forced out of the service for allegedly having inappropriate relationships with other service members.
• Naval Aircrewman (Avionics) 3rd Class Katelyn Boatman, who remains on active duty, said she was subject to sexual harassment when stationed at Tinker Air Force Base, Okla. She responded to the harassment by staying in her quarters and avoiding social situations with her harassers.
The command viewed her as having an "attitude problem" and ordered her to socialize, the lawsuit says. When she attended a holiday party in December 2010 as a result of the command's directive, she was raped after being drugged.
• Former Coast Guard Seaman Panayiota Bertzikis said she was raped in 2006 by a Coast Guard shipmate while out on a social hike with him in Burlington, Vt. Bertzikis complained to her commanding officer, but she said authorities did not take substantial steps to investigate the matter. Instead, she said, they forced her to live on the same floor as the man she had accused and tolerated others calling her a "liar" and "whore."
Her command also forced her to work with her rapist, telling her they should use the time together to "work out their differences."
• Information Systems Technician 1st Class Amy Lockhart remains on active duty. She made chief in 2009. In early 2010, during a training program away from her base, Lockhart attended a party. She went back to her room, passed out, and woke up the next day naked, with no recollection of disrobing.
Two weeks later, her master chief told her he knew her "history of behavior" and threatened charges of fraternization for having sex with a co-worker. When she denied the allegation, the lawsuit says, the master chief "told her he had a signed statement from her rapist admitting to having sex with IT1 Lockhart the night of the party."
Lockhart denied having consensual sex, saying she had passed out. The master chief told her that she had "basically consented" through her actions at the party earlier in the evening. She was demoted from chief to E-6.
In oral arguments on the case, Justice Department attorneys representing the government cited Supreme Court cases involving service members who sued senior officials for personal damages or filed suit against the government seeking damages for service-related injuries. In both cases, the court ruled against the plaintiffs.
Justice attorney Marcus Meeks said the Defense Department has taken great strides to alleviate sexual harassment and assault in the ranks, and that Rumsfeld and Gates, who had no personal knowledge of the 28 cases that comprise the class, cannot be held liable.
"There's long-standing legal precedent that prevents plaintiffs from seeking damages based on allegations relating to leadership," Meeks said.
A 1950 Supreme Court case, leading to what is known as the Feres Doctrine, effectively bars current or former service members from suing the government for damages for personal injuries during their service.
But Cioca v. Rumsfeld skirts Feres by directly naming the two former defense secretaries in alleging that the plaintiffs' constitutional rights were violated due to their personal inadequate oversight.