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Rape, the Military, Statutes of Limitation, and Coker v. Georgia

The title may sound like a hodgepodge of unrelated items, but they are all involved in a case that the U.S. Supreme Court sent back to the Court of Appeals for the Armed Forces (CAAF) today, Abdirahman v. U.S., No. 17-243.

Case 17-243 was a joint petition of 165 service members convicted of various offenses.  One of them, Lt. Col. Michael Briggs, was convicted in 2014 of a rape that occurred in 2005.

The military statute of limitations, 10 U.S.C. § 843 (UCMJ Art. 43), as it read in 2005, had (and still has) a general, "except as otherwise provided," limit of five years in subdivision (b)(1).  Subdivision (a) at the time read:

A person charged with absence without leave or missing movement in time of war, or with any offense punishable by death, may be tried and punished at any time without limitation.
Was rape an "offense punishable by death" under the UCMJ in 2005?
At that time, 10 U.S.C. § 920(a) (UCMJ Art. 120(a)) read:

Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.
However, Section 855/Article 55 bans "cruel and unusual punishments," echoing the Eighth Amendment.  In Coker v. Georgia (1977), the Supreme Court said that the punishment of death for rape of an adult woman violated this provision of the Eighth Amendment as "excessive."  In United States v. Hickson, 22 M.J. 146 (1986), the Court of Military Appeals (predecessor to the CAAF) noted in dictum that Coker applies to the military.  But is the Hickson dictum correct?  If it is, does it follow that the statute of limitations exception does not apply to any offense for which the death penalty cannot actually be imposed, or does the exception apply to any offense for which the death penalty is authorized by statute, regardless of constitutional limitations on actual imposition?

The military is certainly special in some ways when it comes to criminal law, including the Eighth Amendment.  The Supreme Court's elaborate code of capital sentencing procedure requires that eligibility for the death penalty be narrowed to considerably less than the broad array of crimes punishable by death before 1972, and normally the legislative branch must specify the circumstances that make a crime potentially capital.  In the military, though, President Reagan specified the circumstances as commander-in-chief, and the Supreme Court upheld this action without dissent in Loving v. United States (1996).

A broader question lurking beneath Loving was whether the whole post-Furman structure applies to the military at all.  The Clinton Administration DoJ would not make the argument it did not.  A certain notorious amicus curiae argued it does not, but the Court only addresses arguments raised only by amici on rare occasions, and this was not one of them.  The case was decided on the assumption that Furman applies.  See 517 U.S., at 755.

As applied to rape, particularly, a strong argument could be made that the special needs of the military require a different calculus than that made in Coker and the subsequent Kennedy v. Louisiana

All that aside, though, there remains the statutory interpretation question.  If the legislative authority says that offenses X, Y, and Z are punishable by death and in the same enactment exempts offenses punishable by death from the statute of limitations, it has decided that offenses X, Y, and Z are exempt from the statute of limitations.  If a court later decides that people convicted of Z cannot actually be executed, does it follow that the protection of the statute of limitations must be extended to offense Z as well?

The CAAF said no in Willenbring v. Neurauter (1998).  That court overruled Willenbring in United States v. Mangahas, 77 M.J. 220 (Feb. 6, 2018).

The Supreme Court denied certiorari in the Abdirahman case on June 28, even though a supplemental brief had been filed noting the Mangahas decision and its applicability to co-petitioner Briggs's case, and even though the Government was not opposed to a remand in that case.

Today, the Court granted rehearing, vacated the judgment as to Briggs alone, and sent his case back to the CAAF "for further consideration in light of ... Mangahas ...."

At the time of the supplemental brief, the Government had not decided whether to seek certiorari in Mangahas.  The time has since run with no petition, so apparently they decided not to.  Hopefully that is just a "vehicle problem" and they will bring the issue up in another case, perhaps this one.

For later cases, the statute of limitations has been fixed and now expressly includes sexual assaults in the exception.  That may be why the Government did not seek review, but I think the interpretation question is certworthy for its implications beyond the particular statute.  Plus, the underlying question of Furman and the military still needs to be addressed, not assumed.

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