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A Public Battle Over Allegations of Sexual Assault at VA

Andrea Goldstein is a senior policy advisor to Congress' Women Veterans Task Force. From 2009 to 2016 she was an active duty Intelligence officer with the U.S. Navy, and has been in the Navy Reserve since. On September 20, 2019, in the atrium of the Washington, D.C. VA Medical Center, she was fondled, pressed against a wall, and propositioned by an unknown man. It is not believed that the unknown man was a VA employee. However, VAMC staff present did not intervene and were slow to respond when Ms. Goldstein reported the incident.

A week after the incident, Ms. Goldstein and the Chairman of the House Committee on Veterans Affairs, Representative Mark Takano, spoke to reporters about the incident. After the announcement, the VA Inspector General's office and the U.S. Attorney's office conducted an investigation. They closed the investigation with no criminal charges.

After the investigation was closed, VA Secretary Wilkie wrote a letter to Rep. Takano saying, "unsubstantiated claims raised by you and your staff could deter our veterans from seeking the care they need and deserve."  However, Inspector General Michael Missal never said the claims were unsubstantiated. Missal responded to Sec. Wilkie by saying that, "Neither I nor my staff told you or anyone else at the department that the allegations were unsubstantiated.”

Secretary Wilkie subsequently publicly stated that the VA was going to make a renewed push to get answers in the case. A VA spokesperson expanded on this by saying Secretary Wilkie was not asking for the investigation to be reopened but calling on the Inspector General and the U.S. Attorneys' office to Provide more details on the investigation to VA leadership and Congress. Secretary Wilkie added, "I have to know, Ms. Goldstein has to know, our women veterans have to know our facilities are safe."

To further complicate the matter, however, an anonymous complaint was filed with the House Committee on Veterans Affairs, alleging that Secretary Wilkie had previously sought damaging information about Ms. Goldstein. Secretary Wilkie denied doing so, but Congressional officials are looking into the allegations in the complaint.

The public battle raises the issue about the frequency of sexual assault at VA and the associated issue of whether or not sexual assault is addressed appropriately by VA.

If You Experience Sexual Assault at a VA, Can You Sue?

There is no question that sexual assaults occur on VA Medical Center campuses. More than one study has shown that it occurs at higher rates than elsewhere. In some cases, the assault is perpetrated by the very care providers in whom veterans are supposed to place their trust. In others, as is apparently the case with Ms. Goldstein, it is perpetrated by an unknown person, but VA staff fail to act appropriately. In both cases, a victim might wonder if they may sue the United States. The answer is, unfortunately, complicated.

First, any act or omission which causes harm to another can be recognized by a legislature or court as a civil wrong, as opposed to a crime. We call these civil wrongs "torts" and generally people can bring the wrongdoer into court seeking monetary damages. Some torts can also be crimes. A good example is assault. A person may sue the United States for some torts. An old legal doctrine called "sovereign immunity" prevents a person from suing the government without some kind of special permission allowing it. Often this permission is granted by specific statutes. A group of statutes which allow a person to sue the United States for torts is called the Federal Torts Claims Act or FTCA.

So, what about sexual assault?

In most cases, the FTCA prohibits a person from suing the United States for assault.  That often, but not always, applies in cases of sexual assault. If Ms. Goldstein had been assaulted by a VA employee, she would be able to sue the perpetrator individually, but she may not be able to sue the United States under the FTCA. That said, there are potentially other issues which can be raised which might make an FTCA recovery more likely. The analysis required to determine whether the U.S. can be held liable under the FTCA is extremely fact dependent. Despite the apparent prohibition of the FTCA, we have been able to successfully negotiate settlements in some cases of what would often be considered sexual assault.

In Ms. Goldstein's case, VA employees may have been witnesses to the assault but did not intervene. In this circumstance, could VA be held liable under the FTCA? More likely, but the question is also extremely fact dependent and may involve interpretations of State law. In both situations, a careful review of the facts and law by an attorney experienced in the FTCA is the first step in determining what can and cannot be done.

At Rawls Law Group, we fight for veterans every day, and that includes victims of sexual assault. If you experience sexual assault at VA, we might be able to help.


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