The Supreme Court heard oral arguments on Tuesday in a case that, on its face, would decide whether the military can prosecute rape cases that occurred between 1986 and 2006. That was a time when military legal precedent called for a five-year statute of limitations on rape charges.
But the arguments in the case weren’t made about time limits, per se.
Instead, attorneys for the government and the defense in United States v. Briggs opted to make their cases in relation to the 8th Amendment, and whether legal precedent during those years held that rape in the military was a crime punishable by death, and therefore a crime that had no statute of limitations according to the Uniform Code of Military Justice.
“Congress left no doubt in Article 18: It allows courts-martial to impose death when, quote, ‘specifically authorized by this chapter,' unquote – and ‘this chapter’ is the UCMJ,” Acting Solicitor General Jeffrey Wall told the court’s justices.
The crux of the issue is twofold: The UCMJ holds that the most serious crimes can be punishable by death ― among them, rape and murder ― and they do not have a statute of limitations. Article 120, where rape falls under UCMJ, explicitly lists death as a possible punishment.
The respondent’s attorney, Stephen Vladeck, argued that while rape has, at times, been punished by death in the military, the Supreme Court’s 1977 decision in Coker v. Georgia applies to service members.
Vladeck’s point was that, because civilian legal precedent holds that the death penalty is “disproportionate and excessive” for the rape of an adult, rape cannot be considered punishable by death under UCMJ, and therefore until Congress specifically passed its' 2006 law banning any time constraints, the five-year statute of limitations on military rape charges was legitimate.
Further, he added, Article 55 ― which bans “flogging, branding” and other “cruel or unusual punishment” ― is in the spirit of the 8th Amendment, and so 8th Amendment Supreme Court precedent should apply.
However, Wall argued, SCOTUS has historically deferred to Congress on issues of military justice, and it should continue to do so when it comes to rape.
“First, the harms are different,” he said. “Military rape can destroy a platoon, it can undermine forces' readiness, it can even damage foreign relations. So all rape is heinous, but we would say particularly so in the military.”
An issue of timing
Briggs refers to former Air Force Lt. Col. Michael Briggs, whom a military panel found guilty of rape in a 2014 court-martial. The crime dated back to 2005, when Briggs was a captain, his victim was an airman first class and military legal precedent had a five-year deadline for filing rape charges.
Briggs confessed to the rape in a recorded 2013 phone call with the enlisted airman, who had advanced to staff sergeant, telling her, “I will always be sorry for raping you.”
She turned that evidence over to investigators, and thanks to the 2006 National Defense Authorization Act ― which said explicitly that there would be no statute of limitations for rape under UCMJ ― the Air Force sent him to court-martial and sentenced him to five months' confinement and a discharge.
Briggs first attempted to appeal the ruling with the Air Force Court of Criminal Appeals, according to court documents, citing several procedural errors, one of which was that at the time of the rape, the five-year statute of limitations was still in place.
But the AFCCA struck down his complaint, on the grounds that his defense did not raise the issue of the statute at his original trial. Briggs then sought another look at his case, through the Armed Forces Court of Appeals. That body sided with him, overturning his conviction in early 2019.
Now the government is seeking to appeal that decision, on the grounds that in passing the 2006 NDAA, Congress never intended to leave a 20-year gap in its determination that military rapes should be prosecuted no matter how much time has passed.
But Briggs' attorney also argued that the 2006 NDAA language does not explicitly make the law retroactive, and so it shouldn’t apply to the period between 1986 and 2006.
In their questioning, the justices toyed with the issue of whether their court’s own past decisions should apply to UCMJ, which has traditionally been Congress’s domain.
“When else has Congress referred to a constitutional provision and we’ve referred to it only when it was enacted, not as it developed?” Chief Justice John Roberts asked Wall, referring to whether he should consider the evolution of the statute of limitations in the military justice system, rather than how it was originally written down in 1950.
In his questioning of Vladeck, Roberts wondered whether the Coker decision should have had the second-order effect of removing the state of limitations on a military rape case.
“Why would Congress want to make it impossible to prosecute rape at all, simply because this court held that you couldn’t impose the death penalty?” he said, adding that the appropriate punishment and the appropriate statute of limitations are “two distinct issues."
When CAAF overturned Briggs’ court-martial, the new precedent applied to two other Air Force rape convictions: Master Sgt. Richard Collins, who raped an airman in 2000, and Lt. Col. Humphrey Daniels, convicted of raping a civilian in 1998.
Court documents show there are just a handful of known cases the services could try that allegedly occurred between 1986 and 2006, including Collins and Daniels.
Therefore, finding that cases prior to 2006 can be prosecuted wouldn’t "open the flood gates” to justice for 20 years of victims who never came forward, Vladeck said, but it would do “violence to decades of settled precedence in the military.”
Wall, citing conversations with the prosecution in the Briggs case, responded that giving the military free rein to prosecute sexual assaults is part of the bigger picture.
“…it’s critical to be able to go after these cases outside of what would be the five-year window, in order to make progress on rape and sexual assault in the military,” he said.
Given how difficult it can be for survivors to come forward, he added, the barrier of a statute of limitations would be counter-productive to the goal of getting more reports and more convictions, in the larger Defense Department push to bring down its sexual assault numbers.
“The question here is whether three convicted rapists will go scot-free inside the military,” he said.
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members. Follow on Twitter @Meghann_MT