An Article 32 preliminary hearing was held over the weekend to consider allegations of rape of a child by retired Army Major General James J. Grazioplene. According to this associated press report:
The Washington Post obtained charging documents under the Freedom of Information Act that show Grazioplene is accused of committing rape on six occasions between 1983 and 1989 while stationed in the United States and Germany.
Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.
But the Grazioplene case raises a different issue: whether the prosecution is barred by the statute of limitations. Article 43 contains a broad, five-year statute of limitations, and the exception for child abuse offenses wasn’t added until 2003. In United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008), CAAF held that the change was prospective only:
Considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively to cases such as this, the general presumption against retrospective legislation in the absence of such an indication and the general presumption of liberal construction of criminal statutes of limitation in favor of repose, we decline to extend the reach of the 2003 amendment to Article 43, UCMJ, to cases which arose prior to the amendment of the statute.
Update / Correction: Except that in 1986 Congress amended Article 43 to eliminate any statute of limitations for “any offense punishable by death,” and rape was at the time a capital offense.