WASHINGTON (CN) — The U.S. military says it can prosecute rape claims going back decades, but a deeper question arose Tuesday at oral arguments as the Supreme Court focused on the death penalty that such convictions may carry.
For years, the U.S. Military Code has placed no statute of limitations on the lodging of rape claims as the crime is one punishable by death. Congress even went so far as to amend the military code in 2006 to remove all time limits for prosecution.
Two years ago, however, the U.S. Court of Appeals for the Armed Forces reversed course when it ruled in U.S. v. Mangahas that a five-year time limit for prosecution was necessary because only some cases of rape should be punishable by death. In reaching the conclusion, the court also leaned on the military code’s 55th article barring cruel and unusual punishment.
Later the court would cite Mangahas when it overturned the rape convictions of fighter pilot Michael Briggs and two other members of the U.S. Air Force, Richard Collins and Humphrey Daniels.
All three were sentenced to varying prison terms for attacks that happened many years before they were prosecuted.
The government wants their convictions reinstated — a position supported by a bipartisan group of 13 House lawmakers. “Rape is always an evil and devastating crime — but the harm is compounded when it occurs in the highly regimented environment of the military, which stresses the imperative of respecting and deferring to authority,” they wrote in an amicus brief. “In a setting designed to inculcate swift and unquestioning obedience, rape is a uniquely harmful betrayal of trust.”
Acting U.S. Solicitor General Jeffrey Wall underscored these stakes Tuesday at remote arguments before the Supreme Court.
“The question here is whether three convicted rapists will go scot free inside the military. They should not under natural meaning of Article 43 and in the process, the court should not unsettle how statute of limitations work,” Wall said, referring to the U.S. Military Code.
Justice Samuel Alito pressed Wall to explain if the principles behind the statute of limitations were meant to be “narrowly interpreted.”
“We don’t see any grievous ambiguity here,” Wall said, pointing to Section 843 of the U.S. military code which states that a person charged with, among other things, rape or sexual assault of a child or any other offense punishable by death, may be tried without limitation.
“It had an understood meaning in the general criminal context and Congress picked up on it,” he said. “Those are the contextual clues.”
Even if the Supreme Court disagrees, Wall said the doctrine of constutional avoidance advises courts to withhold judgment on any cases that can be resolved on a nonconstitutional basis.
“Constitutional avoidance should break the tie,” he said. “The right tiebreaker is to say if you read the code our way, you don’t have to get into any of these Eighth Amendment questions the court has long reserved.”
Justice Elena Kagan explored whether ambiguity in the code existed.
“It says ‘any offense punishable by death’ but it doesn’t say punishable under what law. Is it under the code alone or all federal statutory law or under the Constitution as well? It just doesn’t say. And then Mr.Wall said, ‘so we look to surrounding context,’” Kagan said.
Stephen Vladeck, who represents Briggs and Collins, said the code would still apply Article 55 to court-martials, leaving justices “in the same place” where they started.
With the convicted soldiers using the potential of the death penalty to argue cruel and unusual punishment, Wall said they have opened a deeper legal chasm.
“To prevail, the court must endorse the proposition that the death penalty is never a constitutionally permissible punishment for rape inside the military,” Wall said.
He noted the last time the military pursued the death penalty was in 1961 after a solider raped a civilian child in occupied Austria during World War II.
“And that argument doesn’t accord with congressional judgment, executive branch judgment,” Wall added. “The needs and harms are different in the military.”
While members of Congress are supporting the military in the case, the National Association of Criminal Defense Lawyers filed a brief on behalf of Briggs, Daniels and Collins.
“Respondents have the constitutional right to be free from cruel and unusual punishment. To that end, they cannot be subject to the death penalty for raping an adult woman,” the group wrote.
Briggs was given a five-year sentence in 2014 for a rape that had occurred in 2005. His victim, identified only as D.K., came forward only after Briggs had confessed to the rape in a recorded phone call. That confession was the lynchpin to his conviction.
Accounts of the other victims appear in another amicus brief. Collins’ victim, Harmony Allen, was a radiology technician in training who had been on the base just three months before her attack in 2000.
The 19-year-old Allen had offered to take Collins home when he was drunk and refusing to take a taxi. On the foyer of his home, Collins pinned Allen against a wall and then threw her to the ground. The fall cracked her head open. When Allen regained consciousness to find Collins raping her, he punched in the face. Later, she would testify of a paralyzing horror during the attack: She stared at a picture of Collins’ wife and children hanging on a nearby wall as Collins threatened to kill her among other taunts. Allen recalled Collins saying no one would believe her because he was a sergeant and she was an airman.
The attending nurse on base would also testify that, of 200 career rape examinations she performed, only once before had she sent a woman to a trauma center afterward for extended medical care. Allen was the second.
Fearing for her life and career, Allen did not report the rape until 2014. When she did, she described to law enforcement intricate details of the family photo she focused on during the assault. Ultimately, a probe of Collins’ home found secured his conviction after the portrait was found in a storage closet.
Collins never raised questions over statute of limitations at his trial, and he was sentenced to 16 ½ years in prison in 2017. He only served one year before the Armed Forces Court of Appeals overturned in 2018.
In the final case consolidated Tuesday, Daniels was convicted of raping a civilian woman, Tonja Schulz, in Minot, North Dakota, in 1998. Schulz had reluctantly invited the lieutenant into her home following their meeting at a gym. She said Daniels repeatedly assaulted her in her bed overnight as her child slept nearby. She did not pursue charges for roughly 20 years until she was contacted by a detective pursuing a separate stalking complaint lodged against Daniels by another woman. Convinced by the detective, she pursued rape charges against Daniels who was court-martialed and convicted.