9th Circuit: Sexual assault wasn’t ‘incident to’ military service

There has been much attention given to the adequacy of the disciplinary process covering sexual assault and the military, which remains largely under control of the chain of command. Recently, the U.S. 9th Circuit Court of Appeal (whose rulings apply to all California employers) had the opportunity to decide if an alleged victim of sexual assault in the military has recourse in the California civil courts.

No technical defense to sexual assault claim

Kathryn Spletstoser was assigned to the United States Strategic Command (STRATCOM) as director of the Commander’s Action Group (CAG). She was chosen for this role based on her record of exemplary leadership, education, and accomplishment.

Months after Spletstoser’s assignment to STRATCOM, John Hyten became the STRATCOM commander, and Spletstoser remained as CAG director. Despite her assignment to the department, Hyten wasn’t her supervisor for disciplinary purposes.

Approximately a year after Hyten took command, STRATCOM was invited to attend the Reagan National Defense Forum. The forum is hosted by the Reagan Presidential Library, a civilian organization, and sponsored primarily by the private sector. The military had no input as to invitees.

Spletstoser and Hyten were two of the “comparatively low percentage of military officials in attendance.” They stayed at a hotel that was open to members of the military and the general public during the forum. The military was in no way responsible for the operations or security of the hotel.