The Unresolved Ambiguities of Article 43 after United States v. Briggs

​In United States v. Briggs, 2020 U.S. Lexis 5989, the Supreme Court of the United States overruled the Court of Appeals for the Armed Forces (CAAF), holding that offenses punishable by death under the Uniform Code of Military Justice (UCMJ), including the offense of rape, have no period of limitations pursuant to Article 43, subsection (a), as it existed between 1986 and October 1, 2007. For reasons stated below, this decision may not be the last word on the interplay between Article 43’s periods of limitations and sex offenses.

The Office of the Law Revision Counsel’s online official U.S. Code  allows for toggling between different versions of the code in effect at particular points in time, for those interested. Article 43 has been amended a number of times, but its basic structure has been unchanged since 2003. For present purposes, subsection (a) has since 1986 carved out an exception for offenses punishable by death, from subsection (b)(1)’s default 5-year period of limitations. The dispute in Briggs concerned whether rape of an adult victim committed in 2005 was punishable by death for purposes of qualifying for subsection (a)’s unlimited time for prosecution.
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The Court summarized the issue as follows: “Because this Court held in Coker v. Georgia, that the Eight Amendment forbids a death sentence for the rape of an adult woman, respondents argue that they could not, in fact, have been sentenced to death, and therefore the statute of limitations for their crimes… was the 5-year statute that generally governed non-capital offenses. By contrast, the Government argues that Article43(a)’s reference to ‘punishable by death’ means capable of punishment by death under the penalty provisions of the UCMJ, and since Article 120(a)provided (despite Coker) that rape could be punished by death, it follows that there was no time limit for filing rape charges against respondents.” Briggs, at *5 (emphasis in original; internal citations omitted)

The Supreme Court sided with the government’s view that “the term ‘punishable’ in Article 43(a) [is] something of a term of art that is defined by the specification of the punishments set out in the penalty provisions of the UCMJ.” Id., at 1-2. The Court’s argument boils down to choosing the certainty of simply reading what the UCMJ’s punitive articles state the maximum punishment is for a given offense (such as Article 120), then plugging in the stated maximum punishment to Article 43’s framework to determine the applicable period of limitations, irrespective of what any judicial decisions or constitutional limits may say about what punishment can actually be carried out.

The clarity and predictability of this argument is attractive. It has the added benefit of avoiding any questions of retroactivity, which the Court otherwise would have had to address. Specifically, if the Court had ruled that in 2005, the time of the offense in Briggs, the statute of limitations for rape was 5 years as an offense that was not - in practice - punishable by death, it may then have been forced to decide whether the 2006 amendments that updated subsection (a) to specifically list “rape” as an offense to which no period of limitations applies is retroactive, extending the 5-year period before its expiration. The Court was able to avoid this set of issues.

However, the Briggs ruling leaves unresolved other ambiguities regarding the statute of limitations applicable to child abuse offenses. In 2003, Article 43 was amended to carve out in subsection (b)(2)(A) another exception from the default 5-year limitations period for certain offenses against minors, regarding which “sworn charges and specifications [must be] received before the child attains the age of 25 years by an officer exercising summary court-martial jurisdiction…” UCMJ Art. 43 (2000) (as amended by NDAA FY04, Pub. L. No. 108-136, § 551, 117 Stat. 1392, 1481). Subparagraph (b)(2)(B) defines “child abuse offense” as constituting any of several offenses, including both rape and carnal knowledge in violation of Article 120, UCMJ, among other listed articles. This basic structure for the limitations period for child abuse offenses has been unchanged since 2003, with several amendments changing various details since then.

The 2003 amendments created an internal contradiction within Article 43. Subsection (a) requires all rape offenses – without excluding those against children - to have no period of limitations, while subsection (b)(2) directly contradicts this by establishing a period of limitations specifically for rape offenses against children.

The version of Article 120 in force at the time of the 2003 amendment to Article 43 until amended on October 1, 2007, defined the offenses of rape and carnal knowledge, with death listed as the maximum punishment for rape, only. Carnal knowledge, akin to what is commonly referred to as “statutory rape,” was characterized by sexual intercourse with an underage victim, but under circumstances not amounting to rape. The offense of rape was differentiated by the element of force and lack of consent. See Manual for Courts-Martial (2019), Appendix 20.

The 2003 amendment to Article 43 on its face extended the default five-year statute of limitations for the offense of carnal knowledge until the child victim turns 25, while carving out the same period of limitation made specifically applicable to Article 120 rape offenses in subsection (b)(2)(B), from the otherwise generally applicable unlimited limitations period for offenses punishable by death in subsection (a). The unintended effect of the statutory language is to shorten the period of limitations for rape offenses when the victim is a child. Various canons of interpretation would require this conclusion. A specific term setting a period of limitations for Article 120 rape offenses against a child in subsection (b)(2) should govern over the general rule in subsection (a) applicable to all offenses punishable by death; this would be logical, and avoid the otherwise contradictory reading. The rule of lenity would require the same construction.

The Congressional Record indicates that the 2003 amendments to Article 43 were introduced on February 6, 2003, by Bill Nelson of Florida, stating in relevant part that:  

“[T]he military’s highest court recently said the [Victims of Child Abuse Act]’s extended statute of limitations doesn’t apply to courts-martial…[and this] loophole became tragically apparent… [when Congressman Nelson] was contacted by the father of a young girl who was sexually abused… to express his frustration that the Air Force couldn’t properly prosecute the man for molesting his daughter over a 7-year period. The military couldn’t convict the offender on the worst counts levied against him because of the insufficient5-year statute of limitations provided by the Uniform Code of Military Justice. Air Force prosecutors originally used the extended statute of limitations provided by [VCCA]… but the most serious convictions were overturned by the U.S. Court of Appeals for the Armed Forces…” (Statements on Introduced Bills and Joint Resolutions, 149 Cong Rec S 2051, 2053)

Congressman Nelson appears to have been referencing United States v. McElhaney, 54 M.J. 120 (CAAF 2000), the only reported case by CAAF that references the Victims of Child Abuse Act. The relevant issue in that case was “whether… the statute of limitations applicable to trials in federal courts for offenses involving the sexual or physical abuse of a child (18 U.S.C. § 3283) applies to trial by courts-martial in lieu of Article 43, UCMJ.” McElhaney, 54 M.J. at 123. One of the convictions at trial was for the lesser included offense of attempted rape, outside subsection (a)’s ambit, because it was not subject to the death penalty. Id. at 124 n.2. Hence, CAAF did not consider the “punishable by death” language to exempt attempted rape offenses from the default 5-year period. CAAF held that the VCAA does not apply to courts-martial. Id., at 126.

During this time, the VCAA stated in its entirety: “No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.” 10 U.S.C. § 3283 (2002). Against this background the 2003 amendments were passed to extend the statute of limitations for child abuse offenses. However, the language of the amendment appears to shorten the period of limitation for rape offenses against children, as noted above. Congressional reports fail to clear up this ambiguity, describing the then-current period of limitations as 5-years. See S. Rpt. 108-46, National Defense Authorization Act for Fiscal Year 2004, Subtitle F – Military Justice (“This would replace the present five-year statute of limitations…”) Interestingly, the issue of the internal contradiction regarding rape offenses against children was briefly mentioned in written submissions and oral arguments, but did not warrant any discussion by the Court in its published opinion in Briggs. 

There is yet another wrinkle arising from the 2006 amendments the statute of limitations not covered by the Court’s ruling in Briggs. It involves the changes to subsection (a)’s definition of what offenses have no period of limitations. Recall that prior to the 2006 updates, the relevant portion of this subsection defined a category of offenses as those “punishable by death.” The 2006 amendments (effective January 8, 2006) added “rape” to this definition.  But the amendment adding “or rape of a child” to subsection (a) did not take effect until October 1, 2007. Compare the authenticated U.S. Government versions of Article 43 after the January, 2006 amendment (available here) with the 2007 version (here). The “Amendments” section for Article 43 in the 2006 Edition and Supplement I published on January 8, 2008, confirms the effective dates as follows:
2006-Subsec. (a). Pub. L. 109–163, §553(a), substituted "with murder or rape, or with any other offense punishable by death "for "or with any offense punishable by death".

…
Pub. L. 109–163, §552(e), substituted ", rape, or rape of a child," for "or rape,".

These amendments resulted from two different sections (§553 and §552) of Public Law 109-163 (the National Defense Authorization Act (NDAA) for Fiscal Year 2006), enacted on January 6, 2006, each of which had different effective dates. The NDAA in general became effective on January 6, applying subsection 553(a)’s changes to Article 43(a). This added “rape” to “any other offense punishable by death” in the category of offenses without a period of limitations. On the other hand, section 552 primarily amended Article 120, UCMJ, and specified that “amendments made by this section shall take effect on October 1, 2007.” That section also contained the amendment adding “or rape of a child” to the class of offenses to which no period of limitations applies under Article 43. Hence, “rape of a child” was not specifically listed as an exemption under subsection (a)’s unlimited category until October 1, 2007.

Additionally, the 2006 amendments (effective January 6) also changed subsection (b)(2)(A)’s limitations period applicable to child abuse offenses, extending it to “the life of the child or within five years after the date on which the offense was committed.” See Pub. L. 109-163, §553(b)(1). For offenses between January 6, 2006 and October 1, 2007, especially if the victim dies (from whatever cause), the period of limitations is therefore even more ambiguous because rape of a child does not appear under subsection (a) during this time, so presumably the more specific language in subsection (b)(2)(A) would control. Just as the 2003 amendments, the 2006 amendments describe two contradictory periods of limitation for rape offenses involving children, under subsection (a) and subsection (b)(2)(A). Based on the statutory language, between the 2003 and the 2006 amendments, rape as a child abuse offense can be prosecuted until the victim turns 25. After 2006, prosecutions can occur anytime during the life of the child, but if the child dies then it reverts to a five-year period.

Subsequent amendments made further changes, but it was only in 2013 that Congress added language to clarify “unless the offense is covered by subsection (a)” the child abuse exception does not apply. See Pub. L. 113-66, §1703(b). Briggs does not resolve these internal contradiction in Article 43 regarding the period of limitations applicable to rape offenses against minor victims.

The legislature’s bumbling with the statute of limitations underlies the recent certification for review by TJAG of the 2016 amendments regarding the period of limitations applicable to Article 134 indecent acts with a child offenses. In 2016, Article 134 was removed from those listed offenses which constitute “child abuse offenses,” as defined in Article 43 for purposes of the statute of limitations. The Army Court of Criminal Appeals has recently yielded to the argument that this caused the period of limitations to revert to the default five years stated in subsection (b)(1). About a year after the 2016 amendments, the legislature attempted to fix its mistake through “clarifying” legislation intended to explain that for offenses committed prior to this change, the old statute of limitations applies. This raises constitutional questions regarding ex post facto legislation and retroactivity.  For details, see United States v. McPherson, 2020 CCA LEXIS 350 (ACCA 2020), also previously covered on CAAFlog.

Should issues regarding ex post facto legislation make their way to the Supreme Court, it would not be surprising to find the Court overrule Stogner v. California, 539 U.S. 607, a 2003 case in which the Court held in a 5-4 split with a forceful dissent by the late Justice Scalia that a California law purporting to revive a previously expired period of limitations applicable to child abuse offenses runs afoul of the Constitution’s ex post facto clause. The composition of the Court has undergone significant changes since Stogner, and the decision in Briggs tends to show that the Court may not be as receptive to arguments based on the statute of limitations.  

Christian Wellisch

Guest