Supreme Court Considers Statute of Limitations for Military Rape Cases

Supreme Court Considers Statute of Limitations for Military Rape Cases

Legal Sidebari

Supreme Court Considers Statute of
Limitations for Military Rape Cases
Updated January 4, 2021
In the consolidated cases United States v. Briggs and United States v. Collins, decided on December 10,
2020, the Supreme Court overturned two lower court decisions and reinstated the rape convictions of
three former servicemembers. The cases turned on the applicable statute of limitations under the Uniform
Code of Military Justice (UCMJ) for prosecuting rapes committed by military servicemembers between
1986 and 2006. Before 1986, the statute of limitations—the time after which an offense cannot be
punished—was three years; since 2006, there is no statute of limitations under the UCMJ for rape. But
between 1986 and 2006, the length of the statute of limitations depended on whether rape was interpreted
as an offense “punishable by death” under the UCMJ. In its decision, the Court held that rape was
punishable by death during this period under the UCMJ’s terms and, accordingly, there was no statute of
limitations between 1986 and 2006.
This Sidebar begins by discussing the relevant legislative history and judicial interpretations of the
UCMJ’s statute of limitations and punitive provisions for rape. It then summarizes the factual and
procedural history in Briggs and Collins, outlines the parties’ arguments before the Supreme Court, and
discusses the Court’s decision. The Sidebar concludes with some considerations for Congress. (For more
information about courts-martial under the UCMJ, see CRS Report R46503, Military Courts-Martial
Under the Military Justice Act of 2016, by Jennifer K. Elsea and Jonathan M. Gaffney. For more
information on statutes of limitations in criminal cases, see CRS Report RL31253, Statute of Limitation in
Federal Criminal Cases: An Overview, by Charles Doyle. And for more information on the availability of
the death penalty for specific federal crimes, see CRS Report R42095, Federal Capital Offenses: An
Overview of Substantive and Procedural Law, by Charles Doyle.)
The UCMJ: Relevant Legal Background
The UCMJ governs crimes committed by military servicemembers. It defines offenses, sets out the
jurisdiction and procedures for courts-martial, and as relevant here, sets statutes of limitations and
authorizes certain punishments, such as the death penalty, for offenses. Three sections of the UCMJ are
especially relevant to Briggs and Collins:
 Article 43 defines the statutes of limitations for offenses under the UCMJ;
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 Article 55 prohibits cruel and unusual punishment; and
 Article 120 defines rape and sexual assault under the UCMJ.
This section first describes the legislative history of these provisions before turning to relevant judicial
interpretations.
Legislative History
Congress enacted the UCMJ in 1950, and it entered into force in 1951. At the time of enactment, Article
43 provided that there was no statute of limitations for “desertion or absence without leave in time of war,
or with aiding the enemy, mutiny, or murder” and set a three-year statute of limitations for most other
offenses, including rape. Article 120 provided that a person guilty of rape “shall be punished by death or
such other punishment as a court-martial may direct.” Article 55, then as now, prohibits “[p]unishment by
flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment.”
Amendments to Article 43
As relevant to Briggs and Collins, Congress has amended Article 43 three times. In 1986, Congress
provided that there was no statute of limitations for “any offense punishable by death” and set a five-year
statute of limitations for most other offenses. These statutes of limitations mirrored their civilian
counterparts, which are codified at 18 U.S.C. § 3281 for offenses punishable by death, and § 3282 for
other offenses. Congress again amended Article 43 in 2003, setting a twenty-five-year statute of
limitations for child abuse offenses, including rape of a child under Article 120. Most recently, Congress
amended Article 43 in the National Defense Authorization Act for Fiscal Year 2006 (2006 NDAA) in a
section titled “Extension of Statute of Limitations for Murder, Rape, and Child Abuse Offenses under the
[UCMJ].” The 2006 amendments provided that there is no statute of limitations for “murder or rape, or
[for] any other offenses punishable by death” and modified the twenty-five-year statute of limitations for
child abuse offenses other than rape. In an accompanying report, the Senate Committee on Armed
Services described the amendments as “clarify[ing] that all murders are included in the class of offenses
that has an unlimited statute of limitations . . . [and] includ[ing] rape in that class of offenses.”
Amendments to Article 120
As with Article 43, Congress has amended Article 120 several times since its enactment. Of note, in the
2006 NDAA, Congress amended Article 120 to specify that a person guilty of rape “shall be punished as a
court-martial may direct,” removing the statutory authority to punish rape by death.
Judicial Interpretations
Before Briggs and Collins, the Supreme Court had not interpreted Articles 43, 55, or 120, but several
lower courts, including the U.S. Court of Appeals for the Armed Forces (CAAF), had done so. Three
cases are particularly relevant to Briggs and Collins. First, in the 1983 case United States v. Matthews, the
CAAF (then known as the U.S. Court of Military Appeals) addressed whether Article 55 protected
servicemembers from cruel and unusual punishment in the same manner as the Eighth Amendment to the
U.S. Constitution. Specifically, the court considered whether the Eighth Amendment’s prohibition on
cruel and unusual punishment barred the imposition of the death penalty on a servicemember found guilty
of rape and murder. The court held that “a servicemember is entitled both by statute [under Article 55]
and under the Eighth Amendment to protection against ‘cruel and unusual punishments.’” It recognized,
however, that, “since in many ways the military community is unique, . . . there may be circumstances
under which the rules governing capital punishment of servicemembers will be different from those
applicable to civilians.”

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In dicta, the Matthews court further observed that, while “Congress obviously intended that in cases
where an accused servicemember is convicted of . . . rape, the court-martial members should have the
option to adjudge a death sentence,” this intent “[p]robably . . . cannot be constitutionally effectuated in a
case where the rape of an adult female is involved, . . . at least, where there is no purpose unique to the
military mission that would be served by allowing the death penalty for this offense.” The court based its
reasoning on the Supreme Court’s 1977 holding in Coker v. Georgia that “a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth
Amendment as cruel and unusual punishment.”
Second, in the 1998 case Willenbring v. Neurauter, the CAAF held there was no statute of limitations for
rape, relying on the contemporaneous language of Articles 43(a) (“A person charged . . . with any offense
punishable by death, may be tried and punished at any time without limitation”) and 120(a) (any person
“guilty of rape . . . shall be punished by death or such other punishment as a court-martial may direct”).
The CAAF considered its decision in Matthews and the Supreme Court’s decision in Coker but held that
the 1986 amendment to Article 43 “was meant to apply to the most serious offenses without listing each
one in the statute.” The CAAF concluded that rape under Article 120 was an offense that Congress
deemed punishable by death, regardless of whether such a sentence constitutionally could be imposed.
Third, and most recently, in the 2018 case United States v. Mangahas, the CAAF overruled Willenbring.
Relying on Coker, the CAAF reasoned that where “there is no set of circumstances under which the death
penalty could constitutionally be imposed for the rape of an adult woman, that offense is simply not
‘punishable by death.’” Recognizing that “Willenbring gave short shrift to this highly salient point,” the
court overruled its prior decision. The CAAF concluded that because rape was not constitutionally
punishable by death, rapes committed between 1986 and 2006 are subject to a five-year statute of
limitations under Article 43.
Briggs and Collins
Factual and Procedural History
The cases before the Supreme Court involve similar facts as the preceding cases. In Briggs, Air Force
Officer Michael Briggs was charged in February 2014 with a May 2005 rape. In Collins (the
consolidation of two cases), Air Force Servicemember Richard Collins was charged in March 2016 with
an August 2000 rape, and Air Force Officer Humphrey Daniels III was charged in 2015 with a July 1998
rape. The victims in all three cases were adults. All three accused were convicted by general courts-
martial and sentenced to imprisonment and discharge or dismissal from service, and all three appealed
their convictions to the U.S. Air Force Court of Criminal Appeals (AFCCA).
During his court-martial, Briggs did not raise a statute of limitations defense, instead raising that
argument for the first time on appeal to the AFCCA. The AFCCA declined to entertain the argument and
affirmed his conviction; in a 2017 summary decision, the CAAF likewise affirmed the AFCCA’s
decision. Briggs petitioned for a writ of certiorari with the Supreme Court. While his petition was
pending, the CAAF issued its decision in Mangahas. The Supreme Court granted certiorari and remanded
Briggs’s case for the CAAF to apply Mangahas. In February 2019, the CAAF held that Mangahas
controlled because the 2006 amendments to Article 43’s statute of limitations did not apply retroactively.
Because the Air Force did not charge Briggs until after the five-year statute of limitations in effect in 2005
had run, the CAAF reversed the AFCCA’s decision and dismissed the rape charge.
In Collins’s and Daniels’s appeals, the AFCCA relied on Mangahas to set aside their rape convictions and
dismiss those charges. The government appealed the AFCCA’s decisions to the CAAF, which, relying on
its decision in Briggs, summarily affirmed those decisions in March 2019 and July 2019, respectively.

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The government sought review of all three CAAF decisions in the Supreme Court, which granted
certiorari in November 2019 and consolidated the cases. The Court heard oral argument on October 13,
2020.
Supreme Court Arguments
In their briefs and at oral argument, the parties focused on three issues. First, the parties disagreed as to
the correct interpretation of “offense punishable by death” in the 1986 version of Article 43, including
whether the CAAF correctly decided Mangahas. The government argued the phrase “punishable by
death” in the 1986 version of Article 43 means any offense for which, by statute, Congress authorized the
death penalty, regardless of whether the Constitution would actually permit the imposition of that
sentence. The respondents, in turn, contended that for an offense to be punishable by death under Article
43, that penalty must be both legally authorized and constitutionally available.
Second, the parties debated whether the Eighth Amendment prohibits imposition of the death penalty for
rapes committed by military servicemembers, including whether Coker applies to rape under the UCMJ.
The government asserted that, because of the unique nature of the military justice system, the Constitution
does not prohibit imposition of the death penalty for rape committed by military servicemembers. But the
respondents argued that military courts, including the CAAF, have consistently applied the Eighth
Amendment in the military justice system except in “cases of ‘military necessity’” and there is no such
necessity here.
Finally, assuming the Court were to hold there was a five-year statute of limitations for rape under the
1986 version of Article 43, the parties disputed whether the 2006 amendment to Article 43’s statute of
limitations was retroactive—that is, whether it could be applied to actions that occurred before its
enactment. If so, then Briggs’s charge and court-martial were timely, because the 2006 amendment
occurred before the existing five-year statute of limitations had run, effectively extending that period
indefinitely. Collins’s and Daniels’s appeals likely would not be affected, however, because the 2006
amendment came after the five-year statute of limitations had run in those cases. (The Court has not
expressly ruled on whether Congress can revive a statute of limitations that has run but has rejected states’
ability to do so, holding in Stogner v. California that such revivals violate the Constitution’s ex post facto
clause.)
The Supreme Court’s Decision
In its eight-Justice unanimous decision issued on December 10, 2020 (Justice Amy Coney Barrett did not
participate in the case as the argument predated her appointment), the Supreme Court reversed the CAAF
decision and held that the prosecutions of Briggs, Daniels, and Collins were timely. The Court’s decision
turned on its interpretation of “offense punishable by death” in the 1986 version of Article 43. The Court
framed the argument as a choice between two interpretations: (1) “punishable by death when all
applicable law is taken into account,” the interpretation endorsed by CAAF and advanced by Briggs,
Daniels, and Collins; and (2) “punishable by death under the penalty provisions of the UCMJ,” the
government’s interpretation. Although the Court acknowledged “reasonable arguments on both sides,” it
found the government’s interpretation “more persuasive” for three reasons.
First, the Court reasoned that because the UCMJ is a uniform code “that reformed and modernized the old
system of military justice ‘from top to bottom,’” its provisions should be understood in the context of the
UCMJ as a whole. Second, the Court noted a “principal benefit” of statutes of limitations is to provide
clarity. Adopting the government’s interpretation, the Court explained, would provide such clarity. In
contrast, adopting CAAF’s interpretation would create an uncertain statute of limitations that would
require the Court to resolve “important and novel legal questions,” including whether Coker applies to the

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military and whether the Eighth Amendment prohibits imposition of the death penalty for rape under the
UMCJ. Finally, the Court refused to “lightly assume that Congress tied the meaning of the statute of
limitations under Article 43 to the Eighth Amendment,” instead of factors like difficulty “gathering
evidence and mounting a prosecution” in rape cases.
The decision appears to have implicitly relied on several judicial canons of statutory construction. (For
more information, see CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by
Valerie C. Brannon.) In particular, the Court seems to have invoked the doctrine of constitutional
avoidance, under which it will generally avoid ruling on a constitutional question if it can decide a case
without doing so. Here, by basing its holding on the statutory meaning of “offense punishable by death”
in Article 43, the Court was not required to decide whether the Constitution prohibits the imposition of
the death penalty for rape in the military justice system.
Considerations for Congress
Although the Court has now resolved Briggs’s, Collins’s, and Daniels’s cases, the legal issues at play in
these appeals highlight several considerations for Congress should it decide to amend the UCMJ. First, if
Congress seeks to clarify that it intends a future UCMJ amendment to apply retroactively, it could include
an “unambiguous” statement to that effect to avoid the presumption against the retroactive effect of
legislation. Second, Congress could consider amending the UCMJ to clarify whether Article 55’s
prohibition on “cruel and unusual punishment” is congruent with the Eighth Amendment’s similar
prohibition. Finally, to avoid future uncertainty as to the proper statute of limitations for offenses
“punishable by death,” Congress might define statutes of limitations under Article 43 by categories of
crimes, rather than by the type of authorized punishment.

Author Information

Jonathan M. Gaffney

Legislative Attorney

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