Pentagon Seeks Supreme Court Decision on Prosecuting Old Rape Cases

Crew members assigned to the USS North Dakota and USS Virginia form in the shape of a teal-colored ribbon on Wednesday, April 11, 2018, at Naval Submarine Base, New London to support Sexual Assault Awareness and Prevention Month. (U.S. Navy/Christian Porter)
Crew members assigned to the USS North Dakota and USS Virginia form in the shape of a teal-colored ribbon on Wednesday, April 11, 2018, at Naval Submarine Base, New London to support Sexual Assault Awareness and Prevention Month. (U.S. Navy/Christian Porter)

The Defense Department has asked the U.S. Supreme Court to weigh in on whether a five-year statute of limitations for military rape cases was wrongfully applied in the case of an assault that happened in 2005, but was tried nine years later.

Air Force Lt. Col. Michael Briggs was convicted in 2014 of raping an enlisted member of his squadron in her room following a May 2005 party. The airman did not report the incident at the time, but in July 2013, after she made staff sergeant and he was promoted to lieutenant colonel, she called him to discuss the assault and recorded his responses. They included "I will always be sorry for raping you," according to court documents.

In February, the Court of Appeals for the Armed Forces overturned Briggs' conviction, saying a 2006 law that eliminated any statute of limitations for rape under the Uniform Code of Military Justice was not retroactive and should not apply in his case.

Under the UCMJ, sexual assault cases prior to 1986 had a five-year statute of limitations. But for cases between 1986 and 2006, when Congress added rape to the list of offenses that have no statute of limitations, the law is less clear. It states that any offense punishable by death -- which in the military includes rape -- may be "tried and punished at any time without limitation."

But questions remain regarding the constitutionality of rape being punishable by death, and have been addressed on a case-by-case basis.

In the petition filed to the high court last week, the government argues that, since rape was a crime punishable by death in the military from 1986 to 2006, and any offense punishable by death has no time limits, Briggs' 2005 rape offense did not fall under the statute of limitations.

The case is similar to a previous case, United States v. Mangahas, in which another Air Force lieutenant colonel faced court-martial for an alleged rape that occurred in 1997 when he was a cadet at the Coast Guard Academy.

While the victim reported the incident at the time, she did not pursue prosecution. But in 2014, she reported it to the Department of Veterans Affairs, launching an investigation and resulting in charges. During deliberations, however, CAAF ordered a stay of the proceedings and ruled that the statute of limitations in the case was five years.

The CAAF's decision now is widely viewed as barring the Defense Department from prosecuting any pre-2006 cases of military sexual assault.

"Allowing the CAAF's flawed construction ... to remain in place would subvert the military's concerted effort to eradicate sexual assault, erode confidence in the military-justice system, and fuel the impression that "nothing will happen to the perpetrator" of military rapes," wrote U.S. Solicitor General Noel Francisco in his petition.

"Sexual assault is 'one of the most destructive factors in building a mission-focused military,'" Francisco wrote, quoting former Defense Secretary James Mattis. "In addition to their 'devastating impact on victims,' sexual assaults by one military service member against another 'negatively affect morale, good order and discipline and the unit cohesion and combat effectiveness of military personnel and units.'"

Last year, the Mangahas decision led the Army to drop a case against retired Army Maj. Gen. James Grazioplene, accused in 2015 of sexually assaulting a girl between 1983 and 1989.

A military judge cited the time limit in dropping the charges against the retired general officer, who now faces charges in civilian court in Virginia.

Mangahas also was used to overturn a 2017 conviction of a rape that occurred in 2000. In that case, United States v. Collins, the U.S. Air Force Court of Criminal Appeals dismissed the conviction of Air Force Master Sgt. Richard Collins, accused of raping a student when he was an instructor at Sheppard Air Force Base.

The Supreme Court ordered Briggs' attorneys to file a response to the government's petition by Aug. 21.

-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter at @patriciakime.

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