The Trump administration urged the Supreme Court to restore the convictions of three male U.S. Air Force members for rape under military law after an appeals court threw the convictions out because they took place after the statute of limitations had expired under military law.
Eight justices, instead of the usual nine, heard oral arguments telephonically Oct. 13 in the case known as U.S. v. Briggs, which was consolidated and heard with other cases.
The Supreme Court bench has only eight members because of the death of Justice Ruth Bader Ginsburg on Sept. 18. Confirmation hearings for Judge Amy Coney Barrett of the 7th Circuit Court of Appeals, whom President Donald Trump nominated to replace Ginsburg, began Oct. 12 before the Senate Judiciary Committee.
The legal issue before the high court is whether the U.S. Court of Appeals for the Armed Forces (CAAF) erred in finding that the Uniform Code of Military Justice (UCMJ) allows prosecution of a rape that took place between 1986 and 2006 only if it was discovered and charges were laid within five years.
It is the government’s position that there is no statute of limitations for military rape because Congress specifically exempted all military crimes subject to capital punishment from temporal limitations.
The convicted men say that the “cruel and unusual punishments” clause of the Eighth Amendment forbids the death penalty for all rapes that don’t lead to the death of the victim, including military rapes. This implies, they argue, that there is a statute of limitations for military rapes and it ran out before the men were prosecuted.
In the lead case, in May 2005, Michael J.D. Briggs was a captain and F-16 instructor pilot in the U.S. Air Force. After a night of heavy drinking, he went to the room of a female member of his squadron identified as “DK” and raped her.
DK, a staff sergeant, didn’t report the event to law enforcement right away but did let others know about it. Briggs confessed his actions and expressed regret to DK in a 2013 telephone call that she recorded. He was convicted in 2014, according to the government’s petition to the court.
Sexual assault must be combated because it is “one of the most destructive factors in building a mission-focused military,” then-Secretary of Defense James Mattis wrote in 2018 in a memo to all members of the Department of Defense.
Such assaults have a “devastating impact on victims” and “negatively affect morale, good order and discipline and the unit cohesion and combat effectiveness of military personnel and units,” the department concluded in a 2005 report.
This leads to an erosion of trust in military organizations and undermines “a commander’s ability to maintain good order and discipline,” the petition states.
At the time of the rape, the binding precedent in the CAAF was a case known as Willenbring v. Neurauter (1998) that interpreted the UCMJ to allow prosecution for rape at any time, without limitation.
In Willenbring, the CAAF found rape was punishable by death despite the Supreme Court’s 1977 ruling in Coker v. Georgia that the Eighth Amendment, which prohibits “cruel and unusual punishments,” forbids the imposition of the death penalty on a civilian defendant convicted of raping an adult woman.
Acting Solicitor General Jeffrey Wall told the justices during oral arguments that the government wants the convictions to stand.
“The question here is whether three convicted rapists will go scot free inside the military. They should not under a natural meaning of [the UCMJ], and in the process, this court should not unsettle how statutes of limitations work.”
“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,” Wall said.
“There’s no settled national consensus against death penalty for rape in the military … and this court defers to Congress’s judgment on matters of military justice.”
The lawyer for the men, Stephen Vladeck, told the court that, since 1953, “every court to consider it, including CAAF, has correctly understood … the UCMJ to reflect Congress’s specific judgment that service members should receive the same protection against cruel and unusual punishment that civilians enjoy under the Eighth Amendment.”
Responding to Justice Brett Kavanaugh, Wall said that “there’s nothing even outside the code that indicates as a statutory matter that … the death penalty was off the table at the time of these offenses.”
The Supreme Court’s ruling in this case will not affect current rape cases but may have an impact on some older cases that had been considered too stale to prosecute, retired U.S. Marine Corps officer and career military attorney Colby Vokey told the Air Force Times.
“There are probably not very many cases in the system where this applies,” Vokey said. “But there’s always the potential for someone to make a rape allegation now, from 20 years ago, and all of a sudden for this to be relevant.”