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    September 11, 2020

    Private Benjamin is Down: Military Women Face Unique Health Risks

    By Eileen C. Moore, Associate Justice, California Court of Appeal, CA

    Now that women have increased access to many military jobs that were previously closed to them, the number of women in the military has increased significantly. As of early 2020, there are 1,820,000 women veterans in the United States. Their health experiences and needs are often unlike those of male veterans.1 As increased numbers of women are volunteering for military service and serving in combat positions, some distinctive risks to their physical and mental health are becoming known.

    At the conclusion of military service, just like men, women transition back into civilian life. Lawyers and judges will likely see many of them in various kinds of legal settings. As a result of injuries and experiences of women in the military, their future legal issues may be implicated. The legal profession should be prepared when women veterans need representation. This article will discuss some of the risks, injuries and experiences that are either unique to women in the military or that occur more often in women.

    Brief History of Women in the Military

    Women have served in the U.S. Armed Forces since the Revolutionary War, but not always as combat soldiers.        In 1948, Congress enacted the Women’s Armed Services Integration Act. Women service members were thereafter recognized, but they could not serve in combat.2 As a result, they were not exposed to the same physical risks they are today when they can serve in combat.

    The issue of women in combat was tangentially before the public following the end of the draft in 1973. Two years later, President Gerald Ford discontinued registration for the military draft. But after the Soviet Union invaded Afghanistan in 1980, President Jimmy Carter determined it was necessary to reinstitute the registration process. The President requested funds to reactivate the Selective Service system for registration of both men and women, but Congress only allocated funds for the registration of men. In 1981, the United States Supreme Court issued Rostker v. Goldberg.3 The case held that Congress had acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men but not women. It noted that deference to Congress is perhaps most appropriate in the areas of national defense and military affairs. The Court stated that Congress held hearings in response to the President's request for authorization to register women, and its decision to exempt them was not the accidental by-product of a traditional way of thinking about women.

    In 1994, the Department of Defense (DoD) issued a ground combat exclusion policy, excluding women from assignment to units below the brigade level whose primary mission is to engage in direct combat on the ground.4 In 2012, the DoD opened 14,000 additional jobs for women in the military, primarily in the Army and Marine Corps. Nonetheless, upward of 238,000 military jobs were still off limits to women.5 Since January 24, 2013, however, women have been officially authorized to serve in combat.6 They fought long and hard for that right. But we are learning that the physical and mental challenges to women who serve in combat or must be combat ready are sometimes different from those faced by men.


    Military Women are Suffering More Injuries than Men

    Surprise, surprise, anatomically and physiologically women are not the same as men. An adult male produces 10 times more testosterone than an adult female, which almost doubles his muscle mass.7 On average, women possess less than 60 percent of the upper body strength than men.8 Additionally, because of estrogen, women have less lean body mass and greater ligament laxity.9 High levels of estrogen can decrease power and performance.10 The upper and lower body mass muscles are much greater in men than in women.11 Testosterone causes the development of a heavier and stronger skeleton in males that has a specific effect on shaping the male pelvis.12 Women have increased pelvic width and several differences in their feet and legs.13 These dissimilarities predispose women to a higher risk of pelvic stress fractures, anterior cruciate ligament (ACL) tears and other injuries.14

    Pelvic and femoral stress fractures are more common in women than men in the military. A woman involved with physically demanding work may find herself in an estrogen-deficient state, leading eventually to decreased bone mineral density and increased stress fractures. The diagnosis of pelvic stress fracture has been made in 1 in 367 female recruits, compared to 1 in 40,000 male recruits. These types of fractures require a much longer length of rehabilitation as compared with tibial, fibular or metatarsal stress fractures, and have a higher frequency of complications.15

    Knee injuries represent one of the most common musculoskeletal injuries in the military. The ACL connects the femur to the tibia. Service men and women experience ACL injuries at rates 10 times higher than the general population.16 While women are generally at greater risk of ACL injuries as compared to men, women who are using oral contraceptives are less likely to sustain ACL injuries, but women who recently stopped using contraceptives are more likely to have ACL injuries. These findings seem to indicate that, since military women suffer many more musculoskeletal injuries than men, their choice of contraceptive may very well impact their lives both before and after they separate from service.17

    Back injuries are also more common in military women than military men. Lifting tasks associated with injuries during the early portion of an Afghanistan deployment resulted in 21.4 percent of the men being so injured, while 58.8 percent of the women had back injuries, even when given lighter loads.18 Running also leads to more injuries in military women than men. A study in Afghanistan showed that 33 percent of service men who ran the same distance for the same period of time as service women had injuries, while 58 percent of the women had injuries.19 Osteoarthritis is often found in a joint that was previously injured, so lifelong problems can be expected.20

    Another difference is that women are typically shorter than men. Shorter soldiers are usually assigned to the rear of marching formations. Thus, the shorter soldiers need to overstride to keep pace with the taller ones, increasing the tension placed on ligaments and sometimes causing stress fractures.21 Foot drills involve marching with an exaggerated heel strike, characterized by a stamping of the feet into the ground.22 Women also have smaller hearts, and that means more blood has to be pumped each minute because they have less hemoglobin in their blood to carry the oxygen needed for exertion.23

    Military Equipment is Designed for Men

    Since combat jobs were previously closed to women, military equipment was not routinely designed with women in mind.24 Physiological differences in the genders place women at a distinct disadvantage in that they are expected to carry the same 100-pound packs and load the same 35-pound rounds over and over again.25

    The inability to physically reach controls and equipment was the most commonly occurring design-related issue found when studying how women in the military have historically performed. The next most frequently occurring issue involved lifting and carrying items such as weapons and generators. If the item carried is too heavy, the risk of musculoskeletal injuries, including injuries from dropping objects, increases.26

    Designing equipment to accommodate mixed sex needs and reduce risks of injury can be challenging, and weight limits would have to be reduced by nearly 50 percent. Researchers and designers are presently trying to apply advances in science and technology to address these issues.27

    Military Sexual Trauma

    Military sexual trauma (MST) is an experience, not a diagnosis. It is defined in the federal Code,28 but in general, it is sexual assault or repeated threatening, sexual harassment that occurs during service in the armed forces. Female service members are at a significantly greater risk of experiencing MST than males.29 Women 24 years old and younger are at the greatest risk for sexual assault.30 The DoD reported 13,000 military women were known to be sexually assaulted or raped in 2018,31 and that the rate increased by three percent in 2019.32

    The latest DoD annual report on sexual assaults in the military describes a toxic and harassing command culture that sets the stage for sexual violence. Feedback from focus groups revealed that young service members are as vulnerable as ever to unwanted advances both from peers and authority figures. Some compare assaults by peers to incest because of the high degree of trust involved with the military’s battle buddy teaching and philosophy.33 As to authority figures, the study found they sometimes groom subordinates in order to sexually assault them. Offhand comments with sexual innuendos are common. Focus group participants relayed such comments as: “But I come in in civilian clothes in the morning and I’ve had people say, ‘Well [expletive], I didn’t know you had all that,’” and “Today I bent over to get something. And I didn’t know there was anybody behind me. Bent over to grab something real quick and a Sergeant is behind me and said, ‘Oh, don’t tempt me.’” Women in the focus groups said service members need to be called out on their negative actions, expressing concern that when sexual harassment is ignored, it becomes normalized. But there are barriers to making reports of sexual harassment. Retaliation and bullying of the accuser are common. Confidentiality is almost impossible when reports must be made within the military. Almost two thirds faced retaliation after they reported an assault, and one third of the victims were discharged after reporting.34

    Note that women who have suffered military sexual trauma have no civil recourse. On July 29, 2020, the country observed performer Ashley Judd win her appeal, permitting her to proceed with her civil action for sexual harassment against movie producer Harvey Weinstein.35 Unlike their civilian counterparts, women who have been sexually assaulted or harassed in the military cannot bring a civil action. For its first 150 years or so, the federal government enjoyed sovereign immunity…you can’t sue the king. Then, in 1945, a military plane got lost in Manhattan fog and crashed into the Empire State Building, killing 14 people and causing a huge amount of damage.36 When the public realized there was no recourse to sue for damages, there was outrage, and Congress was spurred to pass legislation in 1946, the Federal Tort Claims Act (FTCA).37 Traditional sovereign immunity is waived under the FTCA, and the government can be sued for tortious conduct committed by one of its employees. In 1950, however, the U.S. Supreme Court carved out a judicial exception to the FTCA’s immunity waiver in Feres v. United States.38 In Feres, the Court determined the government is not liable for injuries to service members where the injuries are in the course of activity incident to service. As a result, victims of MST have no civil recourse. Challenges to this doctrine have been unsuccessful.39

    A survey of women veterans attending California’s 115 community colleges was completed in April 2020. Nearly two-thirds, 64 percent, revealed they experienced MST, and over half of them never received counseling or support for their trauma. Most of those who responded said they did not have secure housing, and 45 percent were concerned about having enough food.40 Without counseling or support, they are less able to successfully transition back into the civilian world.

    Women Don’t Always Take Advantage of Healthcare Services

    Veterans are entitled to healthcare from the Veterans Health Administration (VHA). However, women veterans often avoid services provided by the VHA, which exacerbates the problem. A 2015 study revealed that lack of childcare and gender insensitivity were among the many barriers to Veterans Administration (VA) healthcare for women veterans.41 This inability of women veterans to avail themselves of VA services can have significant adverse consequences. For instance, alarmingly, a 2016 press release issued by the Department of Veterans Affairs and Vietnam Veterans of America stated that since 2001 the rate of suicide among female veterans who use VA services increased 4.6 percent, while the rate of suicide increased 98 percent among female veterans who did not use VA services.42

    Legal Implications of These Health Disparities

    The health consequences to many women who have served in the military include the potential of having in the United States a whole community of egg-shell plaintiffs appearing in later legal actions. The economic cost of harm under the egg-shell plaintiff doctrine, which requires the person who causes harm to take a vulnerable plaintiff as he or she is, is unpredictable.43 A future employer could be responsible for worsening a pre-existing condition, implicating the Americans with Disabilities Act.44 A defendant in an auto accident might be held accountable for injuries that would not be expected in others.45 Or, an ordinary blood draw in a driving under the influence situation could end up a matter of constitutional concern should the police use even slight force in obtaining the specimen because a woman veteran might have suffered musculoskeletal injuries in the military and be more vulnerable to injury than most.46 Child custody disagreements may very well be related to injuries or illnesses arising from military service. Domestic violence issues appear across the gamut of cases, and a woman’s exposure to violence in both combat and non-combat situations in the military may have bearing on how that topic is presented to the court. In criminal matters, a woman’s prior military service might make all the difference in the disposition of her case in that many states now have criminal statutes beneficial to military veterans. Veterans are often admitted to treatment courts or diverted from prosecution altogether.

    To complicate matters even more, women veterans do not tend to identify themselves as veterans. A homeless services provider opines: “Due to such a high number of women being victims of military sexual trauma, many feel resentment toward the military and often do not associate themselves with being a Veteran.”47 Thus, inquiring whether or not a litigant or witness is a veteran should be as routine as asking for the person’s address. A customary question ought to be, “Have you ever served in the military?”  Thus, if there is a statute beneficial to veterans, the woman will be able to take advantage of it. And, if there are actions she took or damages she suffered, they may be better explained if the fact finder knows she served in the military.

    Conclusion

    Women are essential in America’s military. It is unfortunate that they are vulnerable to more physical injuries than men. That’s just a fact of life. As the military modifies its equipment to accommodate mixed sex needs, physical injuries to service women will likely be reduced. MST is another story. That can and should be stopped immediately. 

    1. U.S. Department of Veterans Affairs, https://www.womenshealth.va.gov/WOMENSHEALTH/latestinformation/facts.asp; https://www.cnn.com/2014/05/30/us/department-of-veterans-affairs-fast-facts/index.html.
    2. Pub.L. 80–625, 62 Stat. 356.
    3. 453 U.S. 57 (June 25, 1981).
    4. January 13, 1994 Memorandum of the Secretary of Defense, https://www.govexec.com/pdfs/031910d1.pdf.
    5. Memorandum for Secretaries of the Military Departments, issued by the Joint Chiefs of Staff and Secretary of Defense, January 24, 2013, https://dod.defense.gov/Portals/1/Documents/WISRJointMemo.pdf.
    6.  https://www.jurist.org/news/2013/01/us-military-to-permit-women-to-serve-in-combat-units/.
    7. Pulley, J. & Scott,  H.P., “What military recruiters aren’t telling women: You’ll face disproportionate health risks,” Los Angeles Times, July 25, 2017, Op-Ed.
    8. Id.
    9. Colonel Springer, B.A., PhD, PT, OCS, SCS, and Major Ross, A.E., MD, “Musculoskeletal Injuries in Military Women,” Borden Institute Monograph Series, published by the Office of the Surgeon General, 2011, p. vii.
    10. Chidi-Ogbolu, N. &  Baar, K., “Effect of Estrogen on Musculoskeletal Performance and Injury Risk,” Frontiers in Medicine, 2019, https://www.frontiersin.org/articles/10.3389/fphys.2018.01834/full.
    11. Springer et al,  supra n. 9.
    12. Pulley et al, supra n. 7.
    13. Springer et al,  supra n. 9.
    14. Id.
    15. Springer et al, supra n. 9, pp. 7, 8, 10.
    16. Owens, B.D.,  Mountcastle, S.B., Dunn, W.R., DeBerardino, T.M., &  Taylor, D.C., “Incidence of anterior cruciate ligament injury among active duty US military servicemen and servicewomen.” Military Medicine, 172(1), 90-91, 2007.
    17. Hosker, M.K., "Hormonal Contraceptive Use Among Active Duty Army Servicewomen, Trends and Implications for Risk of Musculoskeletal Injury," Doctoral Dissertation, 1244, 2018; https://scholarworks.umass.edu/dissertations_2/1244./
    18. https://www.herl.pitt.edu/symposia/rehabilitation-women/presentations/SPRINGER.pdf.
    19. Id.
    20. Hosker dissertation, supra n. 17.
    21. Springer et al, supra n. 9 at p. 11.
    22. Carden, P.J., Izard, R.M., Greeves, J.P., Lake, J.P., &  Myers, S.D., “Force and acceleration characteristics of military foot drill: implications for injury risk in recruits,” BMJ Open Sport & Exercise Medicine, Introduction, 2015.
    23. Pulley et al, supra n. 7.
    24. Savage-Knepshield, P.A., PhD,  Thomas, J., MS,  Schweitzer, K., MS,  Kozycki, R., BS &  Hullinger, D., BS, “Designing Military Systems for Women in Combat,” Military Medicine, Vol. 181, p. 44, 2016.
    25. Pulley et al, supra n. 7.
    26. Id., at p. 45.
    27. Id.
    28. 38 U.S.C. § 1720D.
    29. Lofgreen, A.M., Ph.D.,  Carroll, K.K., L.C.S.W.,  Dugan, S.A., M.D. &  Karnik, N.S., M.D., Ph.D, “An Overview of Sexual Trauma in the U.S. Military,” Focus, The Journal of Lifelong Learning in Psychiatry, October 12, 2017, p. 411.
    30. Department of Defense Annual Report on Sexual Assault in the Military, Fiscal Year 2018, p. 3.
    31. Id.
    32. Department of Defense Annual Report on Sexual Assault in the Military, Fiscal Year 2019, p. 6.
    33. Seamone E.R., &  Traskey, D.M., “Maximizing VA Benefits for Survivors of Military Sexual Trauma: A Practical Guide for Survivors and Their Advocates,” Columbia Journal of Gender & L. 343, 2014, fn. 51.
    34. Id., appendices;  Berkseth, L., Meany K., &  Zisa, M., “Rape and Sexual Assault,” 18 Geo. J. Gender & L. 743, 2017, p. 765.
    35. Judd v. Weinstein, 2020 WL 4343738.
    36.  https://www.history.com/this-day-in-history/plane-crashes-into-empire-state-building#:~:text=A%20United%20States%20military%20plane,Airport%20in%20New%20York%20City.
    37. 28 U.S.C. § 1346 (b)
    38. 340 U.S. 135 (1950).
    39. See, e.g., United States v. Stanley, 483 U.S. 669 (1987); Chappell v. Wallace, 462 U.S. 296, (1983).
    40. http://students.ivc.edu/veterans/surveys/Female%20Veteran%20Experiences%20Survey%20Report%20(April%202020).pdf.
    41. Department of Veterans Affairs, “Study of Barriers for Women Veterans to VA Health Care,” April 2015, https://www.womenshealth.va.gov/docs/Womens%20Health%20Services_Barriers%20to%20Care%20Final%20Report_April2015.pdf.
    42. Vietnam Veterans of America, Press Release, August 4, 2016, https://vva.org/wp-content/uploads/2016/08/VVA-Press-Release-16-023.pd; fU.S. Department of Veterans Affairs, News Release, August 3, 2020, https://www.va.gov/opa/pressrel/includes/viewPDF.cfm?id=2807.
    43. Hoffman, D.A., “How Relevant is Jury Rationality,” 2003 U. Ill. L. Rev. 507, 520.
    44. 42 U.S.C. § 12182(b)(2).
    45. Hall, E.V., “Compensation for Death Accelerated by Occupational Disease,” 54 U. Cin. L. Rev. 1363, 1371-1372, 1986.
    46. State v. Johnson, 305 S.W.3d 746 (Tex.App. 2009);  Correll, M.A., “Is There a Doctor in the (Station) House?,” 113 W. Va. L. Rev. 381, Winter 2011.
    47. U.S. Department of Veterans Affairs, VA RESEARCH CURRENTS, https://www.research.va.gov/currents/0318-Female-Veterans-comprise-fastest-growing-segment-of-homeless-Veteran-population.cfm.
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    About the Author

    In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the California Judicial Council’s Subcommittee on Veterans and Military Families. She is a member of the American Bar Association’s Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association’s Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets’ Women’s Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results. She may be reached at [email protected].