A federal appeals court has upheld the dismissal of a lawsuit filed against the government by the victim of a convicted serial rapist.
The plaintiff, an Army wife at Fort Bragg, N.C., sued for negligence, claiming Spc. Aaron Pernell was supposed to be under Army guard when he slipped into her home in 2009, raped her and threatened to kill her children.
The 4th U.S. Circuit Court of Appeals, in its Nov. 19 ruling, shot down a key argument that the Army should have foreseen the danger Pernell posed because he had threatened to kill himself and others in his unit, and because he committed burglary six weeks before her rape.
“Accordingly, [the victim] has failed to establish that Pernell’s rape of her was foreseeable under North Carolina law, and thus the Army did not breach a duty owed to her as landlord of Fort Bragg,” the ruling states.
In 2010, a general court-martial convicted Pernell of the rape, he was sentenced to 50 years, demoted to E-1 and dishonorably discharged.
Earlier this year, Pernell was reportedly sentenced to 167 years in prison for a series of crimes off Fort Bragg after pleaded guilty in February. He was accused of dozens of crimes related to break-ins and attacks on seven women between fall 2008 and August 2009.
But the appeals court found that at the time Pernell raped the victim, the Army “had no reason to suspect” he had committed a series of burglaries and sexual assaults in Fayetteville in 2008 and 2009.
It was only after the woman’s rape that Pernell gave authorities a DNA sample that linked him to the other incidents.
“It might be a different case if the Army knew that it was one of its own soldiers, and Pernell specifically, that committed the 2008 and 2009 sexual assaults,” the ruling states. “Under those circumstances, the Army may have had reason to know that Pernell was a serial offender and thus owed to [the victim] a duty to control Pernell upon his release from civilian confinement.”
The appeals court also affirmed the lower court’s decision to reject her request for discovery evidence about what Pernell’s commanders knew regarding his alleged violent tendencies and the extent of the restrictions.
“Even if her allegations regarding the orders given by Pernell’s commanding officer were confirmed [by the evidence she sought], her theories of negligence would still fall short of the Army being liable for her injuries,” the court said.
Pernell was at the time an indirect fire infantryman with the 1st Battalion, 325th Airborne Infantry Regiment of the 82nd Airborne Division.
Pernell, since confined at Fort Leavenworth, Kan., wrote a letter supporting his victim’s claim. He wrote that in the months before he raped the woman, his superiors rebuffed his pleas for help with his trauma-fueled nightmares, drug abuse and mental instability.
“I take personal responsibility for raping [the victim],” said Pernell. “I know what I did was wrong. I know I hurt their family badly and I am sorry for it. But I also know the Army failed me. I cried out for help over and over and they did not help me.”
Pernell said he repeatedly told superiors he planned to kill himself and members of his unit so he could be locked into a mental health facility. He said he was nevertheless discouraged from getting help because “it would mess up my military career.”
He was released on bail for his first arrest, a burglary at gunpoint in September 2009.
The victim claimed the Army breached orders to escort Pernell at all times while on Fort Bragg and that he be checked on hourly when in his barracks.
In a sworn statement in support of the lawsuit, Pernell said superiors ordered him confined to his barracks and placed under guard, but the order was not followed, leaving him free to commit rape.
Pernell claims that he was restricted to his barracks and ordered to be escorted by a noncommissioned officer anywhere else on post. He said some of his superiors knew the order was not followed, but did not act — which left him free to leave at night and abuse alcohol and drugs.
The government had a different version of the facts and countered that Pernell was only required to have an escort if he left Fort Bragg and he was not confined to his barracks or required to be checked on hourly.
In either case, Pernell in December 2009 reportedly slipped through an unlocked window into the victim’s home in the St. Mere Eglise neighborhood on Fort Bragg. He told her that she could either perform sex acts with him or he would kill her and her children.
DNA evidence later led investigators to Pernell, who was first charged in February 2010.
The victim filed her lawsuit in August 2011.