When Congress cannot even protect its own members from sexual abuse, what hope is there for the rest of us?

The performative outrage of Congress.

Photo by Sean Robertson on Unsplash

Content warning: sexual violence.

Maybe I’m a bit worn out from all the talk about rape culture and sexual assault. Part of me doesn’t want to hear anymore. The other part is glad that sex abusers are out and proud. The more that abusers express their violence openly, the more doubters will see that the United States and most of the world are hypocrites. Sexual violence is tolerated and ignored everywhere, even in halls of our U.S. Congress.

Eleven years ago, I made the decision to write about my hazing rape into the U.S. Border Patrol. In 2022 when my memoir was published, I naively hoped other victims would come forward about the sexual abuse of female agents. They did, but not publicly. “They will never change,” I was told. “It is just the way it is and will always be.”

But I am an incredibly stubborn woman.

My first venture into law enforcement was filled with excellent examples of good men. I was only 22 years old, a senior at Auburn University. My last quarter was spent as an intern at the Mobile, Alabama District Attorney’s Investigative Unit. My boss was a former FBI agent. He taught me how to conduct professional investigations. His investigators were men and women, Black and white. There was no sexual harassment, no sexual abuse. It was amazing and what I naively assumed most law enforcement to be like.

It took a suicide attempt and many years of therapy just to be able to talk about what my sexual assault in the Border Patrol academy did to me. Especially because my assault came from a fellow agent, someone who I was supposed to be able to trust with my life. During my six years as an agent, I hiked mountains for hours alone in the middle of the night. With just a baton and a revolver, I arrested groups of 20 to 100 men alone. Sometimes, I felt fear like when two migrant men charged at me only to think better of it after seeing me draw my gun. More often, I felt fear whenever I found myself alone with a male agent I did not know well. No, they were not all rapists, but they all knew what had happened to me. They gave me nicknames for it and never once said what was done to me was wrong.

I started down this road of studying rape cultures to save my life. I needed to understand what had happened to me and why an agency who professes every single day to not tolerate sexual violence was, in fact, hiding its incredibly robust rape culture. Every time I see the Border Patrol brag about catching a sexual predator at the border, I think about all the ways these same agents get away with their sex abuse and how they have created a nearly airtight system within the federal service with which to do it.

If you are a federal employee who is sexually harassed or/and assaulted by a fellow employee, you are forced to navigate the gauntlet they call the Equal Employment Opportunity Commission (EEOC). While EEOC likes to portray itself as where federal employees go to resolve conflicts, it is literally the black hole where sexual abuse cases go to die. While I am sure many individuals working within this agency are trying to do what is legal and correct, the system is designed to limit the criminal and civil liabilities of the government. It is not designed to provide justice or deter sexual abuse. This is why I am not upset that Trump is destroying it. EEOC covers up sexual abuse in the federal system.

Even when victims are finally given permission from EEOC to sue the government for their abuse, their claims are often denied by the federal courts. Federally, the only avenue for most victims to obtain any kind of justice is through the Federal Tort Claims Act (FTCA). As Gregory Sisk pointed out in the Iowa Law Review of 2019 in “Holding the Federal Government Accountable for Sexual Assault” —

The average American would be shocked to learn that the United States government holds itself absolutely immune from civil liability for most sexual assaults by its employees. Even the average lawyer might be surprised to discover that the federal employee who commits a sexual assault may also be shielded from individual tort liability by a special federal statute.

The Federal Tort Claims Act bars assault and battery claims against the sovereign United States, even if committed by an agent acting within the scope of most types of federal employment—that includes military recruiters, postal workers, and daycare employees. At the same time, the Westfall Act grants federal employees immunity from state tort claims for acts within the scope of employment. The scope of employment for both federal statutes is defined by state respondent superior law, which over the decades has evolved to hold employers legally responsible under more circumstances for the intentional wrongdoing of employees. As a consequence of these statutes and evolving liability doctrines, both the federal government as an entity and the federal employee as an individual may well be immune from tort liability for assault and battery.

The paragraphs above describe the scaffolding that our legislators at the state and federal levels have created to protect federal employees and their agencies from being held to account for sexual violence.

In 2023 and 2024, Border Patrol Chiefs Tony Barker, Jr. and Joel Martinez were accused by multiple female agents of using their positions to demand sex acts. While the system that provides internal affairs in CBP and Border Patrol always professes to be independent, upwards of 80% of CBP Office of Professional Responsibility (CBP-OPR) investigators are former CBP and Border Patrol agents who have kept the rape culture of their agencies secret for years. CBP-OPR investigators warned the two chiefs about the ongoing investigations. Then the boss of CBP-OPR investigations closed the cases, sealed them and resigned. His name is Daniel Altman, and he is also a former Border Patrol agent. You can read more about how this system works here.

The alleged victims of Chiefs Barker, Jr. and Martinez never got to see their cases go before a criminal court because their bros at investigations failed to file any charges. If EEOC eventually gives the alleged victims a right to sue the federal government, they still must obtain their own attorneys and fight the agency by themselves. The agency will not release any prior allegations in these agents’ files because that would be considered “improper” and “prejudicial” against the alleged offender. Should victims ever get to a civil trial, the Federal Tort Claims Act and the Westfall Act pretty much assure federal agents who commit heinous sex crimes will never be held accountable.

Take the case of Esteban Manzanares. As a Border Patrol agent in the Rio Grande Valley sector of Texas, he arrested an undocumented woman, her teenage daughter and her teenage friend in March of 2014. He sexually assaulted and tried to strangle and break the necks of the mother and one of the teens and then tried to bury them alive. He then drove his Border Patrol back to the station, moved the other teenage victim to his car and took her home. There he tied her to a chair naked, sexually abused her and took pornographic pictures. The two other victims survived, flagged down other law enforcement and reported the incident. When cops got to Manzanares’ residence and banged on his door, he committed suicide.

Years later, all three victims were denied any accountability or restitution by federal courts. Three appellant court judges on the 5th Circuit found that the federal government could not be held liable for Manzanares’ actions even though he was on duty, in uniform, acting as a federal agent in a U.S. Border Patrol service truck when he committed the crimes. Under federal tort law, if the employee’s conduct was not part of their “scope of employment,” then the government is not liable. Rape, sexual assault, strangulation, kidnapping and trying to bury someone alive are not considered to be part of a Border Patrol agent’s job and therefore the agency is not liable according to the court’s reasoning. When some cases do succeed, it is only when a state court more broadly determines that “scope of employment.” Unfortunately, for the Manzanares victims, they were in Texas. They lost, and no one was held accountable.

Federal agents who commit sex crimes know this. They know if they sexually assault anyone while on duty, the chances the victim files a complaint are small. Even when a complaint is filed, they can rely on ex-agents who then become internal affairs investigators to slow-walk and drag out the investigations. If they are not in management, they know they will receive expert legal advice through their union attorneys. If their victim is another employee and union member too, they will receive little help, while their abuser will get complete legal assistance from that same union. They know that if criminal charges are likely, they will be warned to resign or retire and many investigations will be sealed and closed before any charges can be filed. They know that if EEOC does finally allow victims to civilly sue for damages, they will likely not lose their jobs but simply be moved to another sector to continue on with their assaults. In the rare times abusers are disciplined by the agency, they know it will likely just be a verbal or written reprimand. The federal agency itself knows it cannot be held accountable for its agents committing sexual assaults., and thus has no incentive to not hire those under sexual investigations (see Border Patrol Agent Steven Charles Holmes) or those with prior sexual assault arrests (see Border Patrol Chaplain Dana R. Thornhill).

And when all of that is so clearly known, there is zero deterrence for federal employees who commit sexual abuse.

All this is to say, how can we expect justice and reformation in an agency when the U.S. Congress is the one who created this system? An even better question is: how can we expect Congress to address the rape culture and scaffolding that protects it when they cannot even protect themselves?

The truth is that we cannot.

Congress is the creator of our laws. If Congress has a slush money fund to buy the silence of victims abused by its members, if they force victims to sign non-disclosure agreements, if it’s a dirty little secret that everyone knows but nobody reports — then their laws are not worth the paper they are printed on. The system that has been created to protect the lawmakers also protects the enforcers. Their outrage is performative.

Do you see the full picture now?