Editor's Note: A previous version of this article expired on March 16, 2020.
If the Supreme Court holds disputes on Tuesday United States v. Briggs, Originally scheduled for Monday, March 23rd, it will be decided whether three men convicted of military rape should not be prosecuted at all because of the statute of limitations. And should either side's main argument fail, the court could be forced to decide a bigger question: whether the ban on the eighth amendment to the death penalty for rape without murder applies to rape in the military.
This litigation consists of three consolidated cases in which all male military personnel are convicted of rape of female military personnel. Michael Briggs, Richard Collins, and Humphrey Daniels claim the statute of limitations should have precluded their prosecution. The government argues that there is no statute of limitations on military rape because Congress has exempted all military crimes punishable by death from statutes of limitations. The defendants counter that the cruel and unusual punishment clause of the Eighth Amendment prohibits the death penalty for all non-fatal rape, including military rape. This, in turn, means that there is a statute of limitations on military rape that expired before any of the three men was prosecuted. The U.S. Armed Forces Court of Appeals agreed with the defendants.
In May 2005, Air Force captain and F-16 instructor Michael Briggs went into the room of DK, a junior member of his squadron, "after an evening of heavy drinking". He "made her have sex with him even though she said" no "and" stop "and tried to roll away." Eight years later, DK received sufficient evidence to prove the rape, and Briggs was sentenced by a court-martial. He did not object to the statute of limitations, presumably because it was known that there was no statute of limitations for military rape, which was a capital crime.
Subsequently, in a reversal of its previous position, the CAAF ruled that combining the 1977 Supreme Court decision into Coker versus Georgia and his 2008 decision in Kennedy versus Louisiana prohibits the death penalty for military rape, and therefore rape is no longer “punishable” by the death penalty. Instead, the CAAF maintained the five-year statute of limitations of the Uniform Code of Military Justice for military rape. Briggs should be able to object to the statute of limitations on his prosecution, the CAAF noted.
In August 2000, Richard Collins was an instructor at Sheppard Air Force Base in Texas. HA, a member of the Air Force Service, was enrolled on his course. One night while HA was eating alone on the base, she ran into a seemingly drunk Collins. She suggested that he take a taxi home. He insisted that she drive him home and help him to the door. Once inside, he suddenly pushed HA against the wall and then threw it on the floor. HA initially resisted, but Collins punched her in the face, ”then raped her.
HA refused to report to Collins for fear of reprisals. She admitted to a trainer that she had been raped but refused to identify the attacker. Finally, in March 2014, HA submitted an unqualified report identifying Collins. She told investigators that during the attack she “fixed herself” on a family portrait hanging on the wall above the couch in the living room of Collins' house. She described the portrait in detail. An investigation revealed a photo of the wall in the front room around 2000 with a family portrait that matched HA's description and hung over the couch. The portrait itself was discovered in a closet.
Collins was tried on a court martial in 2016. He did not increase the limitation period. As with Briggs, however, Collins' resulting conviction was overturned by the CAAF when it decided that military rape could no longer be punishable by death.
In July 1998, Humphrey Daniels was stationed at Minot Air Force Base in North Dakota. He met TS, a civilian, at the gym where they were exchanging phone numbers. After TS "reluctantly agreed" to allow Daniels to visit her home, he repeatedly asked to stay the night. She declined because her son was sleeping in her bed and Daniels had nowhere else to sleep. Finally she let him sleep in bed, where her son slept too. He "kept trying to touch her" and she "kept pushing him off". Eventually, however, he "pushed her shorts aside" and "entered his penis without consent".
After the police told TS that it would be very difficult for them to prove rape, they declined to participate in the investigation. Much later, in 2015, a Fairfax County, Virginia, detective contacted TS while investigating a complaint that Daniels was following an old friend. The detective learned that Daniels had been investigated by TS in 1998 for alleged rape. The detective persuaded TS to proceed with the rape allegations that culminated in Daniel's court-martial conviction. As with the other two men, Daniel's belief was overturned by the CAAF due to the statute of limitations.
A central issue in this litigation is which subsection of UCMJ, 10 U.S.C. Section 843 applies: subsection (a), which states that "any (military) crime punishable by death may be brought to trial and punished at any time without restriction", or subsection (b), which has a five-year limitation period for other military offenses. The government argues that Section 843 (a) applies because military rape is "punishable by death" in 10 states. Section 920 (a) states: "Any person subject to this chapter who violently and without consent commits sexual intercourse is guilty of rape and is punishable by death or other punishment that a court martial may direct." The three defendants argue that military rape cannot be “punishable with death” as precedents of the Eighth Supreme Court Amendment prohibit the death penalty for non-fatal rape, and when military rape is not punishable by death, the statute of limitations in force is the standard provision of Section 843 (b).
The government has argued on several occasions that military rape "can be punished with death". First, it makes a legal interpretative argument – that Congress did not intend to subject the statute of limitations on military rape to the vicissitudes of the Eighth Amendment case law. It was intended that military rape would not have a statute of limitations, regardless of the ultimate punishment available. Since the law allows the death penalty for rape, rape is “punishable by death” whether or not that punishment can actually be carried out.
Second, the government makes a political argument: Coker and Kennedy do not apply in a military context because "(s) external attacks in the military … destroy the morale, discipline and effectiveness of our armed forces." The Supreme Court has never decided whether the eighth amendment is for Court-martial applies, and the government argues it should not apply as the courts "show respect to Congress in setting the rules, procedures and remedies related to military discipline." "The ruling that military rape should be a capital crime reflects the particular damage to military discipline, recruitment, morale, combat readiness and coalition-building caused by rape in the military ranks," argues the government.
The defendants support the CAAF's recent conclusion that Coker and Kennedy prohibit the death penalty for military rape. However, they have their own arguments as to why the court does not have to answer the constitutional question in their cases. In 10 U.S.C. Section 855 of Congress enacted a separate legal prohibition against cruel and unusual punishment which, according to the defendants, prohibits the death penalty for military rape without reference to the Eighth Amendment. Section 855 states in part: "The punishment of flogging or body marking, marking or tattooing, or any other cruel or unusual punishment, shall not be judged by a court martial or imposed on any person subject to this chapter."
The government has another alternative argument: Briggs will be prosecuted even if Collins and Daniels don't. In 2006, Congress amended section 843 (a) to explicitly include rape as part of military crimes, for which there is no statute of limitations, regardless of whether or not it carries death. The events underlying Briggs' conviction occurred in 2005. The government argues that Congress intended its 2006 amendment to cover all cases of military rape by 2001, as that set out in Section 843 (b) The five year statute of limitations for such cases would not have expired in cases where Section 843 (a) was amended in 2006. (Collins' case arose from events in 2000, Daniels in 1998.)
Briggs replies that this argument contradicts the strong presumption of retroactive application of new laws. If Congress had applied the 2006 amendment retrospectively, it would have said so. Without retroactive application of Section 843 (b), the Briggs case is subject to the five-year statute of limitations of Section 843 (a), which expired long before its prosecution.
At an oral hearing it will be interesting to see whether one of the judges shows an appetite for the constitutional question or whether he considers the legal questions of interpretation to be optional.
Case Preview: Setting the statute of limitations on military rape – and possibly much more
SCOTUSblog (October 10, 2020, 11:00 a.m.),