The United States Court of Appeals for the 4th Circuit has ruled that the United States had no duty to protect a woman, against a soldier who raped a woman in her house even though the soldier was in the process of being administratively separated by the Army for prior burglaries and sexual assaults.
The victim was living on an Army Base in December, 2009, when United States Army Specialist Aaron Pernell unlawfully entered her home and raped her in front of her children. Earlier in March of 2009, Pernell had expressed to his supervising Non-Commissioned Officer that he could not control his alcohol and drug abuse that he desired to kill himself and other un-specified members of his unit. Despite this warning, this supervisor discouraged Pernell from seeking mental health treatment because of possible negative repercussions for Pernell. Pernell repeated this warning to his supervisors and was again discouraged from seeking any mental health treatment in September, 2009. Later in September of that same year, Pernell advised a fellow lower enlisted soldier that he wanted to kill himself and other un-specified soldiers he currently served with. This fellow soldier also advised Pernell not to seek mental health treatment. That same September, 2009, Pernell was convicted and jailed off base in the local county jail for over thirty days for burglarizing a home near the base and assaulting all of the home’s occupants. In January, 2010, shortly after Pernell raped the Plaintiff, it came to light that Pernell was also involved in numerous other burglaries and sexual assaults throughout the area.
Victim Files Suit Claiming Negligence
The victim filed a claim under the Federal Torts Claim Act for negligence on behalf of the United States for breaching the duty to protect her from Pernell. She claimed in the suit that, at the time of her rape, the Army knew Pernell had a history of burglarizing and assaulting, that he was a threat to women who lived on base and in the vicinity of the base, and that the Army had a duty to protect the individuals living on base from Pernell. She also contended that Pernell was restricted to his quarters, a restriction which was negligently not enforced.
What the Court Said
The Court held that the United States did not have a duty to the Plaintiff because it was not foreseeable that Pernell would attack her. The Court reasoned that, at the time of the attack, the Army only knew that Pernell had wished to harm himself and others whom he had served with and that Pernell had assaulted the inhabitants of and burglarized only one house, which was located off of base. The Court further reasoned that though Pernell was originally restricted to quarters, this restriction had been extinguished before he assaulted the Plaintiff. The only restriction Pernell was under at the time of Plaintiff’s assault was that he could not to leave the base. It was not until after he assaulted Plaintiff that he was returned to restriction to quarters. Because the Army only knew about one of Pernell’s burglaries and assaults, which took place off of base, there was not sufficient foreseeability of the Plaintiff’s rape. Durden v. US, 736 F.3d 296