By Becky Park, Conference on Crimes Against Women
& Russell Strand, Senior Special Agent (Ret.)
Sexual Assault is not an Occupational Hazard.
Elsie Dominguez did everything right. And the system has failed her.
In December 2021, the civilian engineer was serving aboard the USNS Carson City as first assistant engineer when she says the ship’s captain used a master key to enter her private quarters overnight and raped her while she slept. The next morning, she reported it through proper channels. She cooperated. She waited. In 2023, when the system still hadn’t held anyone accountable, she sued the federal government for failing to protect her.
This week, a judge dismissed her case.
Not because a jury didn’t believe her. Not because the evidence fell short. The lawsuit was dismissed because the Labor Department decided her rape should be processed as a workers’ compensation claim under the Federal Employees’ Compensation Act (FECA) since, technically, she was in “travel status” for work when it happened. Her attorney, Christine Dunn, put it plainly: “That is very different from being raped in your sleep… That should not be workers’ comp.”
We shouldn’t have to say this but rape is a crime NOT an occupational hazard.
FECA exists to cover injuries that happen because of the job such as a fall on a wet deck, a strained back from lifting cargo. It was never built to absorb rape as an occupational hazard, and it certainly wasn’t built to give institutions legal cover when they fail to protect the people in their care. But that is exactly what it’s doing here. By routing Dominguez’s case into a workers’ comp framework, the government didn’t just deny her a courtroom it reframed a violent crime as a workplace mishap and closed the door on the Navy ever having to answer for what happened to her.
It appears the judge in this case relied on The Westfall Act, which is also formally known as the Federal Employees Liability Reform and Tort Compensation Act of 1988. This act gives federal employees absolute immunity from personal liability for common-law torts committed while acting within the scope of their employment. This act does exempt the federal government from a claim if the federal employee was acting within the scope of their duties. However, what is deeply troubling in this case is this act requires the Attorney General of the United States to “certify” that the “defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose” [1]
Did the Attorney General actually certify that sexually assaulting or raping an employee was in fact an act within the scope of that employees duty? If not, it may be that the judge erred in this decision. If so, this would mean the Attorney General of the United States has certified raping and/or sexually assaulting an employee is within the scope of the supervisor’s duty. This would be an egregious error.
Big question – was the accused in this case acting within the scope of his duties? We assert he did not. If so, how is violating federal rape laws within the scope of a federal employee’s duty? Another question – Does the Attorney General of the United States have the authority to certify that rape and sexual assault is actually within the scope of a federal employees duty? If so, what other crime or crimes can federal employees commit that would exempt federal government liability?
Even if the Attorney General certified the acts committed by the accused were within the scope of duties, there are also provisions in this act that render this defense “does not extend or apply to a civil action against an employee of the Government— “(A) which is brought for a violation of the Constitution of the United States, or “(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.”. Rape and sexual assault are clearly violations of statutes of the United States. Federal laws for rape and sexual assault are located in 18 U.S. Code Chapter 109A – Sexual Abuse (Title 18 of the United States Code, Sections 2241 through 2248). [2]
We see this pattern too often: institutions that respond to sexual violence not by asking “how do we protect survivors and prevent this from happening again,” but by asking “what’s the fastest legal off-ramp.” A remote worksite. A hierarchical chain of command. A captain with a master key and no one to check him. Every condition that made this assault possible was structural and yet the structure is precisely what’s being used to insulate the institution from consequence.
The accused captain, Yamil Sanchez Padilla, surrendered his mariner credentials rather than face prosecution. No trial. No verdict. And now, no civil remedy either. For Dominguez, “justice” has meant watching every available avenue quietly close, one procedural determination at a time.
Another consideration as we evaluate the troubling decisions made by the Federal Government is what, if any actions, were considered by leadership to hold Mr. Padilla accountable under the law. The Uniformed Code of Military Justice (UCMJ) provides remedies and possible prosecution of not only uniformed military personnel but also civilian personnel under certain circumstances. Article 2(a)(10) extends court-martial jurisdiction to civilian employees contractors, and dependents accompanying U.S. forces abroad during active hostilities or designated contingency operations. Additionally, 18 U.S.C. § 7(9) extends U.S. special maritime and territorial criminal jurisdiction to overseas U.S. government facilities and personnel residences in foreign countries when an offense is committed by or against a U.S. national. Was there consideration given by the military to prosecute Padilla under the UCMJ or by federal prosecutors under 18 U.S.C. § 7(9)? If not, why not?
The Military Sealift Command (MSC) conducted an administrative review of this matter and concluded Padilla committed conduct unbecoming a federal employee. During the MSC inquiry, they summarized Padilla’s reply as follows:
“In your written reply… you admit… that you sent the text messages referenced in the proposal letter… You further admit that you had sexual intercourse with 1 A/E Dominguez on December 19, 2021, onboard the ship, while both you and she were ‘affected temporarily with diminished physical and mental control’ due to alcohol consumption.” [3]
Given this information, another question arises. Was there consideration by the United States Coast Guard and/or the MSC to consider UCMJ or federal charges or any criminal action against Padilla?
Based on information from available data, it appeared that instead of finding ways in which to hold Padilla criminally responsible for the reported acts, the federal government (military and civilian), seemed to look to minimize any and all accountability through administrative actions. It not only skirted the possibility of criminal charges, officials from the US government defended itself against civil charges. Reports of sexual assaults and rape must be taken seriously. We must hold our government accountable in every appropriate way to take these reports seriously and hold offenders accountable instead of providing empty statements such as “upholding the rule of law” and “justice for all”.
Dominguez’s own words are the ones that should stay with us: “Things don’t change unless someone’s willing to fight.” She fought. The system wasn’t built to let her win and that’s precisely what needs to change. Survivors in isolated, high-control work environments ships, remote installations, live-in postings need a legal path that treats sexual assault as the crime it is, not a line item in a compensation schedule.
Until lawmakers close that gap, cases like this one won’t be the exception. They’ll be the blueprint.
Citations
[1] https://www.congress.gov/bill/100th-congress/house-bill/4612
