Bloomberg Law
Oct. 13, 2020, 8:50 AM

Justices to Hear First #MeToo-Era Assault Case from Military

Jordan S. Rubin
Jordan S. Rubin

The U.S. Supreme Court will hear arguments Tuesday over prosecuting sexual assault in the military, in a clash between #MeToo-era accountability and the rights of the accused in a system that has struggled to give survivors justice.

Congress eliminated the statute of limitations for military rape in 2006. But the crucial question for the high court is whether a limitations period applies to assaults committed earlier. The answer determines whether the convictions in this consolidated case of three male Air Force members are reinstated and whether other older cases can be prosecuted, too.

The case is also the first involving a sexual assault or rape that’s come to the Supreme Court since the #MeToo movement spotlighted such abuse and harassment globally and could have wider significance for military justice, said Col. Don Christensen (ret.), president of Protect our Defenders, a group dedicated to survivors which filed an amicus brief supporting the government’s appeal.

“For the survivors who went through the process for years to get justice, that would be a big deal for them,” Christensen said. More broadly, he said, “if the Supreme Court were to rule that the lower court was wrong, that would be a good message to society that we understand how difficult it is for survivors to come forward.”

In 1977, the high court outlawed capital punishment for the rape of an adult woman. But even after that ruling, rape was “punishable by death” under military law and there’s no limitations period for prosecuting death-punishable crimes.

The Court of Appeals for the Armed Forces cited the Supreme Court’s prohibition on capital punishment in adult rape cases in 2018 when it said pre-2006 rapes couldn’t be tried outside a five-year statute of limitations. Following that ruling, the armed forces appeals court vacated the convictions of Michael Briggs, Richard Collins, and Humphrey Daniels, who were all charged more than five years after their crimes, committed in 2005, 2000, and 1998.

Fighting to reinstate their convictions, the Trump administration casts its appeal against the backdrop of the military’s sexual assault problem. The government cites a 2018 memorandum from then-Defense Secretary James Mattis that said sexual assault is “one of the most destructive factors in building a mission-focused military.” It’s compounded by chronic underreporting, the solicitor general said, citing Defense Department data.

Kyndra Rotunda, professor of military and international law and executive director of the Military and Veterans Law Institute at Chapman University, said competing interests in the case evoke the adage that “where you stand depends on where you sit.”

On the one hand, she said, “if you are a victim of sexual assault, you want justice. The pain of having been raped does not end after five years.” On the other, “criminal defendants should not be held to trial decades after an incident has happened, when memories have faded, evidence no longer exists, and we’re talking about significant criminal penalties if a defendant is found guilty.”

Cases Unpunished

The Trump administration says the three men and others facing older allegations should be held to account. “Although the CAAF’s decisions affect only a closed set of crimes committed before 2006,” the solicitor general said in its petition to the justices that “the Department of Defense informs this Office that the military continues to receive reports of such crimes.”

The solicitor general said the Air Force, the Army, and the Coast Guard have dismissed or declined to prosecute at least 10 rape cases that they otherwise would have pursued. Acting Solicitor General Jeffrey Wall will argue the case for the government.

By making rape punishable by death, Congress didn’t want to subject that crime to a limitations period, the solicitor general said in its brief. And the high court’s ruling outlawing the death penalty for rape shouldn’t affect military prosecutions, it said, because it’s “well established that the Constitution imposes fewer restrictions on military prosecutions than it does on civilian ones.”

Members of Congress filed an amicus brief against the men, saying the armed forces appeals court’s ruling “will have grave consequences if permitted to stand.”

For Briggs, who was convicted of a 2005 assault after he confessed years later, there’s another reason the government says he should lose: unlike Collins and Daniels, his case was still within any five-year statute of limitations when the law was amended in 2006 to say there is no limitations period. So the conduct in his and any other case and from 2001-on should be unprotected by any limitations period in light of the 2006 law, according to the government’s alternative argument.

Not Punishable

From the perspective of Briggs, Collins, and Daniels, the case boils down to the fact that they couldn’t have been legally executed for rape, and therefore their crimes weren’t “punishable by death.”

If their pre-2006 crimes weren’t punishable by death, the argument goes, then they had to have been charged within five years, a time that had long-passed before their courts-martial. University of Texas law professor Stephen Vladeck will argue their case to the justices.

As to the government’s alternative argument against Briggs, the 2006 change to the law was prospective only, not retroactive, Vladeck said in his brief ahead of the argument.

From a legal perspective, the armed forces appeals court’s ruling siding with Briggs on retroactivity is “a no-brainer,” said Victor Hansen, a New England Law professor who served a 20-year career in the Army. Hansen served most of that time as a JAG Corps officer, and has worked on both the prosecution and defense side of military cases.

The military appeals court “is probably not crazy about the result because it knows the consequences: somebody who is an admitted rapist is going to go free,” Hansen said. “But the law is the law.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at