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Ninth Circuit:
Ex-Air Force General Not Immune in Sexual Assault Case
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—AP Then-Air Force General John Hyten, commander of U.S. Strategic Command, is seen in this July 30, 2019 photo at a hearing before the Senate Armed Services Committee at which his nomination as vice chairman of the Joint Chiefs of Staff was considered. He was confirmed notwithstanding Allegations by a former aide of a sexual assault in her by Hyten in 2017. The Ninth U.S. Circuit Court of Appeals on Thursday held that he and the government are not shielded from liability by the Feres Doctrine in her lawsuit in the U.S. District Court for the Central District of California. |
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has held that former Air Force General John Hyten, who as vice chairman of the Joint Chiefs of Staff from 2019-21 was the nation’s second highest-ranking military officer, is not immune from liability under the Feres Doctrine in an action by a former Army colonel who claims he sexually assaulted her.
Thursday’s decision affirms an order by District Court Judge Michael W. Fitzgerald of the Central District of California denying a motion by Hyten and the U.S. government to dismiss the action brought by Kathryn Spletstoser, an ex-aide to Hyten.
The defendants cited the 1950 decision by the U.S. Supreme in Feres v. United States. There it was held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”
Rawlinson’s Opinion
In Thursday’s opinion, Circuit Judge Johnnie B. Rawlinson wrote for a three-judge panel in saying:
“Frankly, it would be a highly unusual circumstance when a sexual assault consisting of the facts alleged by Spletstoser would further any conceivable military purpose, and thus be considered incident to military service.”
She pointed out”
“The alleged sexual assault in this case occurred at a hotel in California. At the time of the tortious act, the hotel was equally open to members of the military and non-military, and the military was not responsible in any way for the operations or security of the hotel. The off-base location weighs against application of the Feres doctrine.”
Other Factors
The facts that the incident, according to the allegations, took place when Spletstoser was on her “personal time” and Hyten was not in uniform, and was not government-sponsored recreation, also weigh against applying the doctrine, Rawlinson said.
“[T]he tortious act at issue in this case is the intentional tort of sexual assault,” she wrote. “It is unimaginable that Plaintiff would have been ‘under orders’ to submit to Hyten’s sexual advances, or that she was performing any sort of military mission in conjunction with the alleged assault.”
She added that “there can be no doubt that if Hyten had engaged in the same conduct with a civilian staying at the hotel, he would have been subject to legal action.”
The case is Spletstoser v. Hyten, 20-56180.
2017 Incident
Spletstoser alleged that the attack took place on Dec. 2, 2017. At the time, he was head of U.S. Strategic Command and she was director of the U.S. Strategic Command Commander’s senior advisory council.
Hyten visited her room, following a forum at the Reagan Presidential Library in Simi Valley, ostensibly to discuss business, but, according to her account, became sexually aggressive.
Her allegations were made public in 2019 shortly before Senate hearings on his nomination as vice chair of the Joint Chiefs of Staff. An Air Force investigation uncovered no substantiation for the claims, and Hyten was confirmed.
On June 15, Blue Origin, a privately funded aerospace manufacturer, announced that Hyten will serve as executive director of the firm’s Club for the Future foundation.
Spletstoser is now senior advisor to a District of Columbia/Baltimore public affairs consultancy firm.
Copyright 2022, Metropolitan News Company