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Washington Law Review

Abstract

Calls for accountability for gender violence have permeated public discourse in the aftermath of the #MeToo movement. While much attention has focused on high profile individuals accused of harassment, less attention has been paid to sexual assaults of more vulnerable and marginalized people, including low wage workers, lesbian, gay, bisexual, transgender and gender non-conforming people, and immigrants. In addition, at the same time that calls for accountability have targeted Hollywood, employers, universities, and even the Catholic church, relatively little outcry has focused on the longstanding and under-recognized problem of sexual assaults by government actors. This Article focuses on sexual assault by federal officials and considers, in particular, sexual assault of immigrants, including people living in or traveling to the United States to seek asylum. The #MeToo movement rightly has focused attention on the need for accountability by those who commit and facilitate gender violence. It has created a valuable moment for reflection and advocacy for laws and policies focused on prevention and on redress for victims and survivors. Social science makes clear that strong leadership and policies and practices holding both institutions and individuals accountable are key. Civil remedies, including remedies under civil rights laws, are an essential tool in the mix of needed responses. But advocacy efforts have not focused on the federal government’s civil rights accountability for sexual assault committed by those who act in the federal government’s name. The Bivens doctrine, which provides the avenue of redress for sexual assaults by federal officials as violations of constitutional rights, has been increasingly narrowed. It provides no mechanism for institutional accountability; with respect to individual accountability, the Supreme Court recently declared that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” This Article uses calls for reform of sexual harassment laws as a point of comparison and demonstrates that the federal government’s liability for sexual assault and harassment falls short of emerging accountability norms. It argues that the limits on federal accountability are not justified by traditional policy concerns, such as federal officials’ policy-making prerogatives and concerns about financial burdens. This historical moment calls for revisiting outdated legal doctrines to bring them in line with current understandings of accountability, so that our legal frameworks better advance fairness and equality.

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