Is Rape in the Military Punishable by Death? US Supreme Court Considers Question

The Supreme Court is seen under stormy skies in Washington.
In this June 20, 2019, file photo, the Supreme Court is seen under stormy skies in Washington. (AP Photo/J. Scott Applewhite)

In May 2005, after a night spent drinking at Mountain Home Air Force Base, Idaho, Air Force Capt. Michael Briggs went to the room of a junior service member and forced her to "have sex with him, even though she said 'no' and 'stop' and tried to roll away," according to court documents.

The airman did not formally report the sexual assault at the time, but decided eight years later that she would and contacted Air Force investigators. She was able to obtain a confession from Briggs, then a lieutenant colonel. In 2014, Briggs was court-martialed for rape, sentenced to five months in jail and dismissed from the Air Force after 18 years.

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At the time of Briggs’ conviction, there was no statute of limitations for prosecuting military rape cases -- Congress eliminated it in 2006.

At the time of the crime, however there was a five-year statute of limitations for prosecuting military rape cases. That discrepancy is one of two issues facing the U.S. Supreme Court as it considers U.S. v. Briggs, the name given a group of three cases involving the rape convictions of three male U.S. service members for crimes that occurred between 1986 and 2006, when the supposed statute of limitations existed.

The other issue the justices may consider is whether Article 120 of the Uniform Code of Military Justice, which states that rape is a crime punishable by death, conflicts with the 8th Amendment, which bars "cruel or unusual punishment;" provisions within the UCMJ itself that bar cruel and unusual punishment; and a 1977 Supreme Court ruling that declared the death penalty as "grossly disproportionate" punishment for rape.

In oral arguments before the U.S. Supreme Court Tuesday, Acting Solicitor General of the United States Jeffrey Wall charged that military rape is punishable by death, a condition that would invalidate any statute of limitations for prosecuting a crime. He also argued that Congress intended no statute of limitations in such cases, and that the 2006 law made that clear.

"It's critical to be able to go after [sexual assaults] outside of what would otherwise be a five-year window," Wall argued. "In order to make progress on rape and sexual assault in the military -- it's hard to get women to report -- they need to be able to prosecute these crimes and continue to get the numbers to go down. And the numbers have been going down, but part of that is because until very recently, they didn't face a statute of limitation."

Wells also said the 1977 ruling, eliminating the death penalty for rape cases in the U.S., should not apply to the U.S. military, given the military's need to maintain order and discipline and operate in a national security environment.

"All crimes in some sense can undermine unit cohesion and military discipline," Wells argued, but rape "is especially different ... because it divides up platoons and units in a way that other crimes do not."

"Rape in any context is an egregious and destructive crime. And rape by a member of the military -- to whom the country entrusts both the practice and the symbolism of national security -- creates a unique set of harms that goes even beyond those of rape by a civilian," wrote attorneys for the government in a brief to the court.

Attorneys for the Briggs and two other defendants, represented by Stephen Vladeck, a law professor at the University of Texas and expert in constitutional and national security law and military justice, said that at the time of their clients' crimes were committed, a statute of limitations existed and while Congress moved to eliminate it in 2006, the law "has no language suggesting Congress intended it to apply retroactively."

Vladeck also argued that the 1977 case, Coker v. Georgia, and other precedent-setting cases, bar capital punishment for all cases of rape, including those committed by service members, and Article 55 of the UCMJ, which prohibits cruel and unusual punishment, negates the death penalty for rape as spelled out in Article 120.

"[A previous] Court of Military Appeals read Article 55 directly contrary to the government's position, not as simply prohibiting particularly barbaric methods, but as reflecting that Congress certainly intended to confer as much protection as that afforded by the 8th Amendment," Vladeck argued.

The fiscal 2006 National Defense Authorization Act, which got rid of the statute of limitations for rape cases, reiterates Article 120 of the UCMJ, which states that rape and rape of a child is punishable by death.

The other defendants in the Supreme Court case include Air Force Lt. Col. Humphrey Daniels, who met a civilian at the gym at Minot Air Force Base, North Dakota, in 1998, invited himself to her home and sexually assaulted her. While she reported it to authorities, she declined to pursue the investigation after being told it would be difficult to convict based on the evidence.

In 2015, the woman was contacted by law enforcement after Daniels was accused of stalking another woman. After discussing the alleged rape with police, she decided to prosecute, and Daniels was convicted by military court-martial.

The third case involves former Air Force Master Sgt. Richard Collins, an instructor at Sheppard Air Force Base, Texas, who accepted a ride to his home by a student airman who was concerned that he was intoxicated. He proceeded to beat and rape the 19-year-old, who has since gone public about the event. Harmony Allen told a female instructor she had been raped and sought medical help for her injuries but did not identify the assailant.

In 2014, she filed an unrestricted report about the crime. During Collins' court martial, the nurse who treated Allen in the emergency room in 2000 testified that her patient's trauma was some of the worst she'd seen in her career. Collins was sentenced to more than 16 years in prison but he was released in 2018 when CAAF ruled the crime had a statute of limitations. He served just over two years.

Sexual assault and harassment has been a longstanding problem in the U.S. military, and is under a microscope this year following the death of Army Spc. Vanessa Guillen, who was killed in April at Fort Hood, Texas. She allegedly told family members and friends she was being sexually harassed by a fellow soldier.

Cases of sexual assault have risen in the military in the past several years, from 4,794 in 2016 to 6,053 in 2018. In 2019, based on a troop survey, there were 7,825 sexual assaults involving a service member as a victim or subject, according to Pentagon data.

With oral arguments over, the justices will deliberate the case, vote on it and write an opinion. There is no time frame for the court to hand down its decision.

But retired Air Force Col. Don Christensen, former chief prosecutor for the service and president of Protect Our Defenders, said he hopes the justices will rule soon and side with the U.S. government.

"The Supreme Court has the power to restore justice to victims whose rapists were properly convicted at court-martial ... Their decision will have a profound effect on addressing the culture of rape and sexual assault in the military moving forward," Christensen said.

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

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