The U.S. Court of Appeals for the Ninth Circuit ruled Thursday that sexual assault is not “incident” or integral to military service, meaning that those who contend they are survivors of assaults should be able to sue for damages.
The nonprofit organization Protect Our Defenders celebrated the ruling.
The organization had filed an amicus brief in support of Army Col. Kathryn Spletstoser, who alleged that retired Air Force Gen. John Hyten, once vice chairman of the Joint Chiefs of Staff, had sexually assaulted her. Spletstoser was Hyten’s aide while he led U.S. Strategic Command.
She made the allegations publicly in the summer of 2019, not long before Hyten’s confirmation hearing to become the military’s second-ranking officer. The Senate voted 75-22 to confirm Hyten in September that year.
An Air Force investigation into the allegations did not result in charges against Hyten. He retired in Nov. 2021.
Hyten has denied Spletstoser’s accusations.
Government attorneys had relied on arguments that military members cannot seek damages for injuries sustained during time in service, with some exceptions. The ruling allows her civil lawsuit against Hyten to proceed.
“The asserted tortious act (sexual assault) did not involve a close military judgment call, did not further any conceivable military purpose, and could not be considered incident to military service,” the panel wrote, upholding a lower court’s ruling.
“Today’s decision has the potential to open the door for thousands of military sexual assault survivors to fight back and seek the compensation they are rightfully owed,” retired Col. Don Christensen, a former top Air Force prosecutor and current president of Protect Our Defenders, said in a statement, adding that the organization is “proud to support Col. Spletstoser — this wouldn’t have been possible without her bravery.
“I hope that this represents an important first step in expanding the currently limited options for military sexual assault survivors,” Christensen added.
A message seeking comment was sent to a Department of the Air Force representative.
In April, an Air Force judge found former Air Force Research Lab commander Maj. Gen. William Cooley, 56, guilty of one charge of abusive sexual contact in an historic court-martial at Wright-Patterson Air Force Base.
The judge sentenced Cooley to a reprimand that may impact his military career and retirement and ordered that he forfeit $10,910 of monthly pay for five months.
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