Opinion analysis: No statute of limitations for military rape
The Supreme Court on Thursday unanimously reinstated the rape convictions of three former servicemen in United States v. Briggs and two consolidated cases. The nine-page, 8-0 decision, with Justice Samuel Alito writing for the court and Justice Amy Coney Barrett not participating, reverses judgments of the U.S. Court of Appeals for the Armed Forces that had held the three prosecutions time-barred because it found a five-year statute of limitations for military rapes occurring between 1986 and 2006.
By interpreting the Uniform Code of Military Justice to exempt rape prosecutions from any statute of limitations, the court avoided the need to decide whether the cruel and unusual punishments clause of the Eighth Amendment prohibits capital punishment for military rape. Because the UCMJ states that there is no statute of limitations for crimes “punishable by death,” and because the court of appeals had held that the Supreme Court’s 1977 decision in Coker v. Georgia prohibits capital punishment in cases of adult rape that do not involve homicide, there was a possibility that the court would have to reach the merits of the constitutional question.
The issue of statutory interpretation that proved decisive in these cases arose because of the language in Articles 43(a) and 120(a) of the UCMJ. Between 1986 and 2006, Article 43(a) stated that an offense “punishable by death” may be tried “at any time without limitation.” During that same time, Article 120(a) stated that rape could be “punished by death.” The government argued that the combination of these two provisions meant that there was no statute of limitations for rape in the military during that 20-year period, when Michael Briggs, Richard Collins and Humphrey Daniels committed their crimes. (In 2006, the UCMJ was amended to explicitly eliminate any statute of limitations for rape, rape of a child and sexual assault.)
The three servicemen argued, and the lower court agreed, that the interplay of the UCMJ and Coker meant that the code’s general five-year statute of limitations applied to rapes between 1986 and 2006. Coker held that non-homicidal adult rape could not be punished by the death penalty. Because the rapes in the three cases at issue all involved adult victims, Coker prohibited capital punishment, rendering these offenses not “punishable by death.” That, in turn, meant that the default five-year statute of limitations in the UCMJ applied, the servicemen argued. Under that theory, all three prosecutions were time-barred because they came more than five years after the rapes occurred.
While noting that there were “reasonable arguments on both sides,” Alito’s opinion for the court ultimately sided with the government’s argument that when Article 43(a) of the UCMJ states that there is no statute of limitations for crimes “punishable by death,” it means punishable by death as specified by other portions of the UCMJ, not punishable by death under applicable laws external to the UCMJ, such as the Eighth Amendment.
There were three reasons for preferring the government’s interpretation, Alito wrote.
First, the UCMJ is a “uniform code,” which “reformed and modernized the old system of military justice ‘from top to bottom.'” That makes it natural for the statute of limitations provision to be interpreted by reference to other parts of the UCMJ instead of laws outside the UCMJ.
Second, one of the goals of any statute of limitations is clarity, stated Alito. Yet if Congress had made the statute of limitations dependent on the Supreme Court’s future Eighth Amendment jurisprudence — which may in turn depend on the “evolving standards of decency” in society — then Congress could not have had that clarity at the time of enactment. The court has never reviewed a case asking whether military rape may be punished by the death penalty, and it was “predictable” that the court would not review the statute of limitations question until someone had been convicted of rape after the expiration of five years. It is unlikely that Congress would choose to plunge the statute of limitations into such an unclear, indefinite state of affairs, wrote Alito.
Third, the factors underlying the enactment of a statute of limitations differ from the factors underlying Eighth Amendment jurisprudence. In creating a statute of limitations, a legislature is largely concerned with the difficulty of presenting evidence and of putting together a prosecution. The jurisprudence of the cruel and unusual punishments clause, on the other hand, is concerned with neither of those factors. Whether the clause is concerned with evolving standards of societal decency, as some justices would have it, or the original intention of the framers, as others would have it, neither of those ideas overlap the concerns animating a statute of limitations.
In its vindication of the government’s statutory interpretation argument, the court rejected the “ordinary meaning” argument pressed by Briggs, Collins and Daniels. Citing Webster’s Dictionary, the three servicemen claimed in their merits brief that “the commonsense meaning of the term ‘punishable’ is ‘any punishment capable of being imposed.'” Then, quoting a Florida Supreme Court opinion, they asserted that “the phrase ‘punishable by death’ is susceptible of only a single construction — a crime for which the death penalty may be imposed.”
Alito acknowledged that this argument “finds support at first blush in contemporaneous dictionary definitions of the term ‘punishable.’ But upon inspection,” he continued, “definitions shed little light on the dispute because they largely re-raise the question over which the parties divide: capable of being punished under what law?” The answer to that question, concluded the court, was the UCMJ itself, not laws external to the UCMJ.
Briggs, Collins and Daniels did indeed argue that their position was supported by another provision within the UCMJ. Article 55 of the UCMJ prohibits courts martial from imposing any “cruel or unusual punishment.” The Court of Appeals for the Armed Forces has held that, in Article 55, “Congress intended to confer as much protection as that afforded by the Eighth Amendment.” Thus, given Coker, even if “punishable by death” only refers to other provisions of the UCMJ, the result is that military rape is not punishable by death, the servicemen claimed in both their brief and at oral argument.
The court appeared to sidestep this argument. Even if Article 55 bars the death penalty, stated the court, Article 120(a)’s use of the phrase “punished by death” makes it the more natural reference for Article 43(a). Later in the opinion, the court noted that the servicemen “argue that Article 55 of its own force applies Coker’s rule to the military, while the Government maintains that Article 55 cannot reasonably be read to forbid a punishment that another provision of the UCMJ specifically authorizes.” The court did not, however, go on to resolve the dispute.