In United States v. Briggs, the U.S. Supreme Court held that the Uniform Code of Military Justice (UCMJ) contains no statute of limitations for rape. Beyond the three convicted rapists who brought the appeal, few will be very disappointed to learn of this ruling. People who commit rape deserve punishment, regardless of how long they have managed to get away with their crimes. Nonetheless, we can profitably notice when Courts give us desirable results by stretching the language of statutes. Such observation is especially useful in refuting that same Court’s helpless claims, in other contexts, that the statute dictated the result. It is rare indeed for a statute to make judges do anything that they do not wish to do.
In this case, three men were tried and convicted of rape committed within the Armed Forces. Their prosecution took place more than five years after the crimes alleged, so the proper statute of limitations became very important. Under the UCMJ, a military offense “punishable by death, may be tried and punished at any time without limitation,” while other military offenses are subject to a five-year statute of limitations. The question before the Supreme Court was accordingly whether rape is or is not a crime punishable by death.
Statutes of Limitations
Whenever a guilty criminal benefits at trial because of a procedural failure, many will resent the fact that a technicality scuttled the achievement of justice. For instance, if police go into a house upon probable cause but without a warrant and there find evidence of the resident’s crime, the exclusion of that evidence at trial will strike some number of court watchers as unfortunate and wrong, given that the evidence is no less incriminating when the police lack a warrant than when they have one. Statutes of limitations take things to a whole new level.
When the statute of limitations has passed on a particular crime, it means that not only will some incriminating evidence stay out, but the entire case will disappear. If a man runs over another man with a car and renders the second man paralyzed for life, but the statute of limitations on aggravated assault or attempted murder has run by the time the prosecution brings charges, the person driving the car can celebrate. The running of the statute is about as good a pardon, despite the fact that no one has concluded that this criminal is worthy of forgiveness or a second chance.
Why do we even have statutes of limitations? One reason is that when a lot of time has passed between the commission of a crime and the trial of the offense, witnesses may have a hard time recalling everything accurately, while other witnesses might have died, and mistakes become more likely. The defendant might have a difficult time locating witnesses for his side of the case. The statute of limitations, however, is both over- and under-inclusive as a solution to the fading memories and dying witnesses problem. Sometimes, after all, the evidence is perfectly preserved, though sixty years have passed, and other times, the witnesses have faulty memories even two weeks after the crime, especially if the main controversy is over who committed the offense.
A second reason for such statutes is to give potential defendants closure so that they can stop worrying about becoming an actual defendant. This reason has greater fit with the operation of a statute of limitations. On the other hand, it is not obvious why anyone who has committed a serious crime should be able to ever enjoy “closure” regarding their offense, in the absence of punishment or even a sincere expression of remorse. Some will say that many innocent potential defendants could fear false accusations, and the passage of the limitations period can give them peace. But in the universe of the wrongly accused, there could always be a more timely false charge that someone levels, so the statute of limitations does not fully relieve them of their burden.
Whether one loves or hates statutes of limitations, the Court faced the question whether military rape carries one or not.
The argument that rape has a five-year statute goes like this. Under Coker v. Georgia, decided in 1977, punishing a rapist with the death penalty violates the Cruel and Unusual Punishments Clause of the Eighth and Fourteenth Amendments. Therefore, if we assume that that ruling applies to the military, rape necessarily falls outside the category of crimes punishable by death. If so, then it follows that the five-year statute of limitations applies to military rape, under the UCMJ, and has accordingly run, leaving the three convicted rapists free of having to fear or ever experience prosecution for the rapes they were found guilty of committing.
That argument is relatively straightforward, but there is a response. Under the UCMJ, a uniform code, there is a directive that rape could be “punished by death.” One might accordingly read the UCMJ to both classify rape as punishable by death and to provide that crimes punishable by death carry no statute of limitations. Q.E.D., rape would carry no statute of limitations. If no other body of law in fact bore on the execution of convicted rapists, then the above reasoning would be uncontroversial and sensible.
The problem with the above argument is that if we assume that Supreme Court constitutional precedent binds the military, then Coker v. Georgia effectively crossed out the UCMJ penalty provision for rape. And the UCMJ itself has a cruel and unusual punishment prohibition that might itself have ruled out the penalty of death for rape, much as the U.S. Supreme Court had done, even if the Court’s ruling did not apply directly. Given this reality, the obvious thing for Congress to have done if it wished for the crime of rape itself—rather than just those crimes that happen to be punishable by death—to carry no statute of limitations, was to have amended the UCMJ to provide that rape has no statute of limitations. Instead, though more than four decades have passed since the Supreme Court decided Coker, the UCMJ continues to designate the application of a statute of limitations by which crimes are and are not punishable by death.
The Supreme Court’s Decision
We can start by acknowledging that everyone on the Supreme Court would want the military rape convictions to stand. The sorts of rapes that generate normative controversies rarely make it to prosecution, and I suspect this is especially true of the military justice system. And those acquaintance sexual assault cases that do get to court yield embarrassingly lenient penalties. One civilian example is the case of Chanel Miller, author of Know My Name, whose sexual assailant received a six-month sentence (knocked down to three months). We can accordingly assume that the rapes before the Supreme Court were what some would call “real rapes,” that feminists would generally want to punish because they are rapes and anti-feminists would want to punish because they are the type of rape that “counts.” The only problem is that the argument for the five-year statute of limitations is stronger than the argument for no statute of limitations, as we have seen above.
The Court makes three arguments for its contrary position: 1. The UCMJ is a unified code and we should understand the part about statutes of limitations (forever for crimes “punishable by death”) as drawing on the penalties section (rape is “punishable by death”); 2. If we reference Supreme Court precedent to understand the statute of limitations, then we have less clarity because a. we don’t know whether Coker applies to military prosecutions and b. Eighth Amendment doctrine changes over time; and 3. Statutes of limitations have different goals from the Court’s Eighth Amendment jurisprudence.
As suggested earlier, these points are weak. 1. Even a unified code is generally subject to the Constitution, and therefore, 2. Because Congress could have amended the UCMJ to clarify that rape remains in the “no statute of limitations” category, it seems appropriate to draw a clear negative inference, and the Eighth Amendment doctrine on this point is quite stable with exactly one relevant change in the past forty-four years.
Few attorneys (or members of Congress) would choose to maintain the no-statute-of-limitations category of “punishable by death” if it might be literally unlawful to subject a criminal to death for rape and people wanted rape to remain in the no-statute-of-limitations category.
If nothing turned on how the Court answered the question presented, the Justices might well have reasoned that rape carried a five-year statute of limitations. That is the more persuasive interpretation of the statutory text. But something turned on the resolution of the issue: the convictions of three rapists that the Justices likely wanted to see punished. We can thus conclude that when the Court wishes to reach a particular result in a statutory interpretation case, it reaches that result. And therefore, when the Court issues what appears to be a disturbing opinion in a statutory interpretation case, there too, it has reached the result that it wanted to reach. They can no longer don the T-shirt that says “The Statute Made Me Do It.”