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The U.S. government is asking the Supreme Court to overturn a decision by the military’s highest court, one that the government is arguing was wrongly decided and prevents military authorities from prosecuting some rapists in its ranks.
In a rare move, the office of the U.S. Solicitor General petitioned the Supreme Court this month to revisit a decision by the Court of Appeals for the Armed Forces that prohibits prosecution of alleged rapes that occurred before 2006.
At issue is the CAAF decision in February to dismiss the verdict and sentence in a rape case involving Air Force fighter pilot Lt. Col. Michael Briggs. Briggs was convicted in 2014 of raping an airman in 2005, after the woman reported it in 2013.
But the CAAF reversed Briggs’s five-month jail sentence and dismissal from the service. The court said the case had exceeded a five-year statute of limitations for rape it had recently decided was in effect until 2006 — the year Congress specifically removed statutory limits for rape - and that the 2006 change was not retroactive.
“That result contravenes the statutory text, Congress’s evident intent to root out and punish military rape, and the military’s constitutional latitude to punish military crimes more strictly than civilian ones,” according to the Solicitor General’s petition. “Recognizing that sexual assault within the military is devastating to the morale, discipline, and effectiveness of our Armed Forces, but also difficult to uncover, Congress long made rape a capital offense and has enabled rape to be prosecuted whenever it is discovered.”
When Briggs went to trial, CAAF’s precedent held that there was no statute of limitations for rape because under the Uniform Code of Military Justice, rape qualified as an offense punishable by death. Any death-penalty offense was exempt from the five-year statute of limitations for most crimes.
But in 2018, while Briggs’ case was on appeal, CAAF reversed its own precedent in another Air Force rape case. Lt. Col. Edzel Mangahas was charged in 2015 with raping a fellow Coast Guard cadet 18 years earlier. Before that case could go to court-martial, CAAF decided that a 1977 Supreme Court decision banning the death penalty for rape meant that rape was likewise not a military capital offense — and so was not exempt from the five-year limit.
“What CAAF did in the Mangahas case was a total reversal of what had been around for 20 years,” said Zachary Spilman, a Marine Corps Reserve appellate lawyer and lead writer of a military justice blog.
Many state legislatures have limitation periods for prosecuting rape, ranging from three to 30 years. But as a result of a number of reports over the past 15 years exposing sexual abuse of victims, who were often too intimidated to come forward for many years, at least 10 states now have no time limit for filing charges in such cases.
The Solicitor General’s petition says that the CAAF rulings have prevented the Defense Department from pursuing new reports of rapes alleged to have been committed before 2006, in addition to several cases dismissed on appeal.
“Indeed, the Air Force, the Army, and the Coast Guard have in the last 18 months collectively dismissed or declined to prosecute at least ten rape cases that they otherwise would have pursued,” according to the petition.
It’s not clear whether the Supreme Court will accept the case. Four of the nine justices must vote to accept a case.
Don Christensen, president of Protect Our Defenders, an advocacy group for military sexual assault survivors, said he hoped the Supreme Court would hear the case and reverse the military court.
“That would be good for the CAAF. It would be good for them to be slapped down a little bit,” he said. “This was a devastatingly bad opinion.”
