Oral arguments in the case of United States v. Briggs were presented to the Supreme Court telephonically on Tuesday, October 13. The consolidated defendants, three male military personnel who were convicted of rape in three separate incidents, claim that the UCMJ’s standard 5-year statute of limitations should have barred their prosecutions.
The government argues that there is no statute of limitations for rape because military rape is punishable by death, and Article 43 of the UCMJ allows an offense punishable by death to be prosecuted at any time. The defendants countered by citing Article 55, UCMJ, which protects against "cruel and unusual punishment". Since this language mirrors the Eighth Amendment, which the Supreme Court interpreted as prohibiting the death penalty for non-homicidal rape in Coker v. Georgia, defendants' rape offenses are not punishable by death. Therefore, the statute of limitations applies, and it expired before each of the three men were prosecuted. The United States Court of Appeals for the Armed Forces agreed with the defendants, dismissing the charges against them and concluding that Coker prohibits capital punishment for military rape. The issue on appeal is therefore is whether CAAF erred in concluding – contrary to its own longstanding precedent – that the UCMJ allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
Both the government and counsel for the defendants urged the Court to avoid the constitutional question of whether the Eighth Amendment ruling in Coker applies to the military, both arguing that Congress has already decided the question but in conflicting ways. The government argues that there is no statute of limitations for rape because plainly, Article 43, UCMJ, says that an offense punishable by death may be prosecuted at any time, and Article 120 says rape is punishable by death. The government also points to Article 18, which allows courts-martial to impose death “when specifically authorized by this chapter.” According to the government, Article 18 indicates Congress’s intent to have us look to only “this chapter”, the UCMJ, to determine whether an offense is punishable by death within the meaning of Article 43.
Justices Kagan and Kavanaugh both pushed back on this argument, asking, why doesn’t “offense punishable by death” mean punishable under all federal law, rather than just “punishable by death under this chapter”? Solicitor General Jeffery Wall conceded that if Congress passed a law that said “rape shall not be punished by death under any federal law”, the government would have a harder case. However, in rebuttal, Wall revised his answer and stated, “I think Congress would need to make a contrary judgment in the UCMJ to affect the meaning of Article 43.” However, Justice Kavanaugh did not seem convinced “punishable by death” in Article 43 didn’t mean punishable by death under any law.
The defendants’ counsel, Stephen Vladeck, instead focused on the way in which Article 55 mirrors the Eighth Amendment and pointed to a 1953 Court of Military Appeals decision, which “expressly held that Article 55 provides service members as much protection against cruel and unusual punishments as the Eighth Amendment, and Congress has never disavowed it, even after Coker.”
The government however contended that when it was implemented, Article 55 was understood the way the Eight Amendment was originally understood, using “cruel or unusual punishment” as a catch-all for certain types of torturous punishment. The government argued that while the Court has interpreted the Eighth Amendment to incorporate a proportionality standard, Congress did not implement Article 55 with this interpretation in mind. Given the clear parallelism between Article 43 and 120, the government does not find the punishment by death for rape in Article 120 and the protection of Article 55 to be in conflict, but General Wall further argued, “[e]ven if the Court disagrees, I think constitutional avoidance should break the tie.”
The defendants, however, offered another alternative: read Congress’s actions in the wake of military courts interpreting Article 55 to automatically apply Coker to service members as Congress’s approval. Vladeck argued that since Congress enacted Article 43 after military courts had been ruling that Article 55 foreclosed the death penalty for rape, Congress couldn’t have intended to include rape in Article 43’s definition of offenses punishable by death. Vladeck additionally pointed to the fact that Congress decided in 2003 to implement the rule that, where the victim was a minor, rape by a service member could be prosecuted until the victim’s 25thbirthday, which would have been not just unnecessary if Article 43 included rape, but would have shortened the statute of limitations for rape. Further, Congress decided to officially eliminate a statute of limitations for all rape offenses in 2006 (after all three of the offenses at issue occurred), which Vladeck argued would have been entirely unnecessary if Congress believed rape was already not subject to a statute of limitations under Article 43.
Justice Kagan and Justice Gorsuch pushed Vladeck on whether the Court must decide the constitutional question of whether Coker and Kennedy v. Louisianaapply to the military and how that should be resolved. While Vladeck repeatedly responded that Congress has already answered this question, General Wall responded to similar inquiries with the argument that the Eighth Amendment shouldn’t apply at all to the military context. Wall emphasized the fact that there is no national consensus with respect to the death penalty for rape in the military, that military society has a special need to maintain trust and discipline, and that rape in the military can sometimes affect foreign relations, such as if American service members were to rape civilians in occupied territories.
Wall went on to say that even if the proportionality analysis of Coker and Kennedy applies, the balance is different and the court should defer to the government on military matters. Wall emphasized that “[t]here are at least some rapes in the military where you could punish it consistent with the Eighth Amendment” but the defendants’ argument would require the death penalty to never be available for military rape. Vladeck countered that rape as a war crime, which could be applied to Wall’s example of a soldier raping a local child, could be charged separately under the UCMJ.
In my opinion, Vladek’s strongest argument for the defendant’s statutory interpretation is Congress’s silence in the wake of military courts applying Coker and Kennedy to Article 55, UCMJ, until 2006, when Congress eliminated the statute of limitations for all rape offenses. However, when Article 120 explicitly authorizes the death penalty for rape, it’s difficult to see why Congress would feel the need to clarify their stance. I think it’s more telling that Congress hasn’t taken any steps to align the UCMJ with the Supreme Court’s interpretation of the Eighth Amendment. And rather than a sudden change in policy from the 5-year statute of limitations being applied to rape by military courts, the 2006 rule by Congress could be seen as clarified confirmation of their intent to make military rape punishable by death in Article 120 and free from a statute of limitations.
It’s difficult to determine which statutory interpretation the Court will find more persuasive. However, the Court seemed skeptical that the defendant’s argument would not require them to address the Eighth Amendment question. Therefore, if the Court decides to adhere to the canon of constitutional avoidance, I think they will lean towards the government’s interpretation. If they decide to address the question of whether Cokerand Kennedy’s interpretation of the Eighth Amendment expressly applies to the military justice system, it’s likely that the Court will follow its long history of deferring to Congress in the context of military affairs and find that capital punishment for rape as provided in Article 120, UCMJ, may stand.