On 15 October 2020 we referenced the Supreme Court litigation about the statute of limitations applicable to rape cases in United States v. Collins and United States v. Briggs.
For much of the UCMJ’s life, most offenses were subject to a three or five-year statute of limitations (SOL). Over time that has changed especially for sex offenses. Some time ago the SOL for rape was removed—there now being no SOL. That change has caused a collision with the Supreme Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977)—the court decided that the death penalty for rape of an adult, absent a death, was cruel and unusual punishment and issues of retroactivity.
You know the military has been proactive investigating and at times prosecuting “old” sex offenses. For example, Collins was prosecuted about 20-years after his offenses, Mangahas 18 years after his offenses, and Briggs about eight years after his offenses. There are similar cases now in the appellate pipeline affected by the Supreme Court’s decision in Collins and Briggs. See, e.g., United States v. McPherson, No. 20180214, 2020 CCA LEXIS 350 (A. Ct. Crim. App. Sept. 28, 2020) (unpub.). The Army TJAG certified the case to CAAF on 3 November 2020. []
In United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018), the Court of Appeals for the Armed Forces (CAAF) held the five-year SOL prohibited his rape prosecution because the five-year SOL had expired and any new change did not apply. In doing so, the CAAF reversed itself from a 1998 case. The Government did not appeal to the U. S. Supreme Court.
We then concluded that the period of limitations for rape of an adult woman under the version of Article 43(a), UCMJ, in force from 1986 until 2006, was five years.
, 78 M.J. 289, 291-92 (C.A.A.F. 2019).
Although the resolution of Briggs’s, Collins’s, and Daniels’s cases rests with the Court, the legal issues at play 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. 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.
 Article 67(a)(2), UCMJ, 10 U.S.C. 867(a)(2) allows the Government to “appeal,” by “certification,” a decision of a court of criminal appeals. CAAF must hear the case. Article 67a, UCMJ, 10 U.S.C. 867a, then gives the Government direct access to the U. S. Supreme Court—access mostly denied to appellants. See Appellate review by the Supreme Court—still discriminatory, GMJR 4 December 2020.
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