Army officer who says she was raped is barred from suing the military

Capt. Erin Scanlon says she doesn't know where to begin.

Of the numerous setbacks she says she's faced in the last three years, it's hard for her to pinpoint where she feels it all went wrong.

Her ordeal, she says, started on the night of Sept. 10, 2016, when Scanlon, a former fire support officer in the Army's elite 82nd Airborne Division who left the military last month, claimed she was raped by another Army service member in Fayetteville, North Carolina. She was a first lieutenant at the time of the alleged assault and made captain in February 2019.

But from there her predicament only worsened: The military took over the case from civilian criminal court a week before trial was set to begin, and one of her former special victims counsels, her advocate in the military legal system, was ordered to testify against her about a witness Scanlon didn't disclose until late in the court martial process.

Scanlon says she then wasn't allowed to sit in on the trial or see any transcript and that, now, she has no legal recourse to file a suit against the Army primarily because of a controversial 1950 Supreme Court ruling that prevents service members from suing the government.

The man she accused, who had been a sergeant first class in the elite and highly secretive Delta Force, denied the allegations and was eventually found not guilty under military court proceedings. ABC News is withholding his name because he was acquitted.

By the end of it all, she says she felt betrayed by the military, which has been trying to combat a surge in sexual assault complaints and create an environment that encourages service members to report assaults.

"In my opinion, I really didn't have a chance at justice from the beginning," Scanlon told ABC News in an interview. "I think they went through the motions of giving me a court martial, but they never planned to prosecute."

Scanlon filed a $10 million claim against the Army in April 2019 alleging "negligent investigation and handling of sexual assault case by Fort Bragg."

The military has since denied the claim, citing the Federal Torts Claims Act, a statute that allows private parties to sue the government or government employees but does not apply to members of the military because of the controversial Feres doctrine, which stems from the 1950 case Feres v. United States. Scanlon and her lawyer opted to not file suit in federal court having concluded further litigation is futile.

Her current attorney, Natalie Khawam, has been working to limit how the Feres doctrine is applied. She took her fight to Congress last year with another client in hopes of making it easier for service members to file a claim against the military if they are victims of medical malpractice.

They won that fight in December 2019.

"Why is it that these men and women who served our country are not having the same rights, the same legal recourse, that everyone else enjoys?" Khawam told ABC News. "People have to be held accountable."

A spokesperson for U.S. Army Special Operations Command provided the following statement to ABC News on Scanlon's case: "U.S. Army Special Operations Command referred the criminal allegation to court-martial June 2018. The court-martial panel returned a finding of not guilty." The Army declined ABC News' public records request related to Scanlon's case.

Initial investigation

The man Scanlon accused, who left Delta Force just weeks before the alleged attack, according to his enlistment record, was arrested on Sept. 30, 2016, by the Fayetteville Police Department after Scanlon filed a police report against him.

She told police that after meeting him on Sept. 9, 2016, at a bar in Fayetteville for a charity event, he invited her to an after-party at a nearby warehouse, according to pre-trial documents obtained by ABC News from Cumberland County, the original jurisdiction for the case.

As Scanlon was leaving a portable toilet outside, the only bathroom available, he allegedly confronted her. "He immediately started kissing me and I started saying, 'Stop. Don't. Go find someone else,'" Scanlon told ABC News.

Scanlon said she continued to try pushing him away and tell him no, but eventually "had just kind of given up."

The sergeant was eventually indicted by a grand jury in Cumberland County on charges of second-degree forcible rape, second-degree forcible sexual offense and misdemeanor sexual battery, according to his indictment, and pleaded not guilty to all charges.

The Fayetteville detective who handled Scanlon's case said that when he spoke with her friend, who was with her the night of the alleged assault, the friend "corroborated the victim's story and advised the victim told her, 'I feel like I was just raped,'" according to a search warrant application.

In the same application for a warrant, the detective said that he reviewed Scanlon's medical record from her sexual assault kit. Her injuries -- lacerations to her back, legs, and hands, a contusion to her lower back and a small vaginal tear -- "corroborated the victim's statement," the detective stated in the warrant.

The sergeant's attorney, who spoke to ABC News on the condition of anonymity, dismissed the allegations against his client, calling indictments "fairly routine." He said Scanlon was an "officer who got caught having sex in a compromising position with an NCO (non-commissioned officer)."

The lawyer also said that there were witnesses who said they saw the incident, with one testifying at the court martial that she saw Scanlon with her arms wrapped around the sergeant's neck and legs wrapped around his waist and that the incident appeared to be consensual.

Scanlon doesn't deny that a woman saw her and the sergeant during the incident, but she claimed she hadn't remembered it until months later.

When she later did tell one of her special victims counsels (SVC), who serve as attorneys meant to help sexual assault victims through the legal process in the military, she also said she felt ashamed that she hadn't reached out to the witness for help.

"I didn't know who she was and she was there and then gone so quickly," Scanlon said. "I thought people wouldn't believe I had been raped if I hadn't yelled out to her for help."

Deanne Gerdes, the executive director of Rape Crisis of Cumberland County, where Scanlon sought help, said it's common for sexual assault victims to suppress certain memories of an assault.

"In my world, that's very typical," Gerdes told ABC News. "It's trauma."

'My life was falling apart'

After waiting more than a year for the trial to begin, Scanlon suffered another setback.

Six days before the Feb. 26, 2018, trial, Cumberland County said the case was now being handled by the military and there would be no trial in civilian criminal court.

She remembers her "anxiety went through the roof."

"My life was falling apart," she said.

The sergeant's attorney said the case was not moved at the behest of the military, but rather because Cumberland County "didn't want the case."

However, court filings appear to tell a different story.

In the court record stating the reason for the dismissal and notice of reinstatement, a box reading "other" is checked and specifies "defendant is being prosecuted by the military for this offense."

A box reading "there is insufficient evidence to warrant prosecution" was not checked. It was also noted in the Army's records of the case that the trial was moved at the request of the military.

At the time, the Army claimed it had only just found out about the case, according to Scanlon and Gerdes, but Scanlon said she notified the Army's Criminal Investigation Command (CID) right after the alleged assault occurred. A case report also shows that the detective handling Scanlon's case had been in contact with agents from CID on four occasions in September 2016 -- about a year and a half before the Army claims to have found out.

Scanlon also claimed that when she reported the incident to the CID, she says officers at CID told her to speak to Fayetteville Police because the alleged assault happened there.

When the case was handed over, Scanlon faced another challenge. Her SVC had requested immunity because Scanlon previously had a relationship had with a non-commissioned officer in violation of military rules and she did not want that to be used against her. It took around three months for Scanlon to be granted immunity to testify and to be able to fully participate in the government's case, according to a record of the court martial.

In court papers from the military trial, the defense team said Scanlon's SVC did not respond to questions about the new witness and that Scanlon refused to be interviewed by the defense.

The Army documents reviewed by ABC News, which didn't include the court martial transcripts, were provided by Scanlon and Gerdes from a public records request filed by Scanlon.

653 days later, a trial finally happens

It had been 653 days since the alleged rape occurred and Scanlon finally had her day in court, on June 25, 2018, in Fort Bragg.

Yet that was all she was there for: a day. The trial ran through June 27.

As in most sexual assault cases, Scanlon was considered a witness. Yet unlike the other witnesses, Scanlon was never officially released by the court and therefore wasn't allowed into the trial proceedings. It's unclear why she wasn't released.

When she did take the stand, she says she found herself feeling like she was the one on trial.

"It was all about me," Scanlon said. "What did I do? How many people did I hook up with before?"

Scanlon said she suffered multiple breakdowns during her testimony and eventually kept her "eyes closed so I didn't have to look at the defense attorney."

Beyond her own testimony, Scanlon says she knows little about the trial and ABC News has been unable to obtain trial transcripts to shed light on what happened.

She says she does know that one of her SVCs was ordered by a judge to testify on behalf of the defense concerning the witness that Scanlon only disclosed around the time the court martial was set to begin, according to Scanlon and court records.

SVCs are part of "a legal support function for victims of sexual assault that provides legal advice and guidance, and maintains a victim's confidentiality," according to the U.S. Department of Defense Sexual Assault Prevention and Response (SAPR).

The SAPR program was established in 2004 after former Secretary of Defense Donald Rumsfeld wanted the DoD to review its process for treatment and care of sexual assault victims. It now serves as the DoD's "single point of authority for sexual assault policy and provides oversight to ensure that each of the Service's programs complies with DoD policy," according to its website.

Though SVCs within SAPR have attorney-client privilege, court records show the judge found that Scanlon waived this privilege.

"Being ordered to do something in the military is much different [than in civilian life.] Whether [the SVC] wanted to or not ... it was someone who outranked her who ordered her" back to testify, Gerdes said. Scanlon's SVC who was called to testify did not respond to ABC News' request for comment.

Beyond this incident with one of her SVCs, Scanlon says she felt even more frustrated by the sheer number of counselors she went through ahead of the final trial: five, according to documents.

"They just turned over so fast," she said, citing deployment or a new position.

Gerdes remembers that Scanlon's rotation of SVCs coincided with what she saw as Scanlon's deteriorating mental health.

"She never really knew who she was seeing, which, in the mental health world, is the worst thing you can do," Gerdes said. "Every time she had to retell the story."

Gerdes said few showed up to any pre-trial hearings or court dates.

"I called Fort Bragg and I was like, 'Where are you guys? Why didn't you show up?' And I was told it was bad weather and they couldn't make it," Gerdes said.

When both the government and the sergeant's attorneys rested their case, Scanlon decided to write a victim impact statement in hopes that she could read it if the man she accused was convicted.

When she returned to the courtroom to hear that the sergeant had been found not guilty on all counts, she says she stared straight ahead with little emotion.

"I just walked out, knowing I did everything I could for myself," Scanlon said.

Scanlon has since tried to obtain a trial transcript, but says she was denied because he was acquitted.

"I don't understand why I still would not get those records. He was acquitted like there's your proof right there. ... But why can't I see the records?" she said.

In the statement filed her claim against the military, Scanlon wrote that "even though I was scared, I knew that when something like this happens to you, you are supposed to go to the police, and I couldn't understand why people wouldn't. I quickly realized though."

Sexual assault victims in the military can file a restricted report, which allows them to confidentially report an alleged assault to get treatment, but not trigger a full investigation.

About a quarter of service members who initially filed a restricted report changed it to unrestricted and chose to participate in the military justice process, according to the DOD.

Scanlon had filed an unrestricted report from the beginning.

In the statement with her claim, Scanlon wrote she was forced to "relive that night again and again," miss training, was not able to go to talk to a chaplain on the 24/7 victims hotline and "ended up in a courtroom with my rapist alone with no advocates" because they are "so busy with trainings and new cases."

"I realized these resources weren't serving their purpose. I was able to ask for help from other people," she wrote. "But another victim who may be very scared, will likely give up when the SARC [Sexual Assault Response Coordinator] or VA or chaplain let them down, allowing the perpetrator to get away with his crime.

"I've had all these difficulties as a LT who can tell my commander and soldiers when I need to leave work for an appointment. I can't even imagine how a young solider would feel having to try to explain this to his or her NCO."

Gerdes remembered that after the trial Scanlon wanted to know about the sergeant's whereabouts, out of fear she may run into him at Fort Bragg.

"Was he still in town? Could she go to the gym at post? Could she go to the hospital at post and not run into him?" Gerdes said. "No one ever gave her that information."

Looking ahead

The military has seen a stark increase in sexual assault cases since the year of Scanlon's alleged assault in 2016, according to a report from the Department of Defense.

Around 20,500 active duty military members in the Army, Navy, Air Force and Marines reported being sexually assaulted in the 2018 fiscal year, a 38% increase from the 14,900 in 2016, the report read. The majority of the time -- around 60% of cases -- the victims were women, according to the report.

While the 2018 report did not include the number of cases that went to trial, in 2017, around 400 cases did out of the 774 in which court-martial charges were preferred, according to the DoD report.

Seventy percent of the cases resulted in a conviction of at least one charge, however the DOD noted the charge could have been sexual assault or any other misconduct charge. Most convicted service members received at least four kinds of punishment, according to the DOD, which were confinement, reduction in rank, fines or forfeitures and a discharge or dismissal from service.

In the military's efforts to combat sexual assault, the Catch a Serial Offender Program was launched in the 2019 fiscal year, according to the DOD. If investigators discover a match in other reported incidents, victims will be notified and given the opportunity to switch their reports from restricted to unrestricted in an effort to participate in the military justice process.

Dr. Nathan Galbreath, the acting director for the department's Sexual Assault Prevention and Response Office, said in a statement to ABC News that the DoD "remains absolutely committed to preventing sexual assault and encouraging greater reporting of the crime."

"Over the past decade, we've seen a significant decrease in how often the crime occurs and a four-fold increase in how often victims choose to report it," Galbreath said. "The Department encourages greater reporting to provide the highest-quality response to Service members and to hold offenders appropriately accountable."

The sergeant's attorney said his client is still serving in the Army, but said he did know his unit and believed he would not want to reveal it.

Scanlon has since left the military. Her last official day in the U.S. Army was Dec. 23, some four years after she began active duty.

"I kinda did not bounce back like I was hoping to after the trial," she said. "It was right around then I realized, I'm not doing this anymore. I need to get out."

Scanlon's attorney, Khawam, said that when she first heard Scanlon's case she immediately took it on because of her continued fight to limit Feres. One of her clients, Sgt. 1st Class Richard Stayskal, recently won his malpractice challenge of the doctrine.

New legislation, which was agreed upon by Congress and which made it into the National Defense Authorization Act (NDAA), will allow for members of the country's armed forces to file a claim against the U.S. and receive compensation if they were subjected to "negligent or wrongful" medical treatment at a military facility, according to a portion of the NDAA.

However, sexual assault is still not explicitly an exception to Feres, according to Khawam. The DOD said that Feres was not specifically cited to deny Scanlon's claim, but Dr. Dwight Stirling, the CEO at Center for Law and Military Policy and a leading scholar on the Feres doctrine, said that it is implied by citing the Federal Torts Claims Act.

Stirling told ABC News that while it's "unconscionable to tell a member of the service that if you're sexually assaulted you have no recourse to our court system," it is the reality members of the military face. Feres limits any sort of lawsuit against the U.S. by a member of the military who was hurt in some capacity while on active duty, he said.

While he does not know the exact number of cases in which the Feres doctrine stops a claim against the military in terms of a sexual assault case, he said he believes that most victims would want to have their day in civil court but are not able to do so.

He also noted that Feres creates a culture in which soldiers know they can't have a lawsuit brought against them, a notion that he said could contribute to sexual assaults in the military.

"I know that my colleagues are aware they can't be sued," Stirling, who also serves as a major and JAG officer, told ABC News. "It gives a person whose potentially gonna be a perpetrator a sense of being above the law, being able to function with impunity."

Despite efforts the military has taken to decrease sexual assaults, Stirling says little will change until people can be held accountable.

"The military has tried to solve this issue with all kinds of new programs and personnel and offices and SAPR and what not. None of it has worked," he said. "I contend that it will never work until you allow the person who is a survivor, the victim, their day in court."

Stirling, Khawam and Scanlon are all hopeful that change will come one day. Khawam plans to spend this year appealing to Congress to make exceptions to Feres for sexual assault victims.

In the meantime, Scanlon says she hopes that her story will give other women the strength to come forward and prompt change in how the military handles sexual assault cases.

"They're taking care to make sure that a service member doesn't get put away unless it's proven reasonable beyond a doubt, but what about me?" Scanlon said. "I [was] also in the Army."

Editor's note: ABC News had previously identified Erin Scanlon as a 1st Lt. She was a 1st. Lt at the time of the alleged assault, but made Captain in February 2019.