Top Ten Military Justice Stories of 2018 – #3: CAAF’s clarification of the statute of limitations for rape
Article 43 of the UCMJ – like federal civil law – contains a baseline five-year statute of limitations. Congress added exceptions in 1986, including an exception for “any offense punishable by death.” At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the statute didn’t protect men until 1992).
But there was a catch: the Supreme Court previously held that death is an unconstitutional punishment for the offense of rape of an adult woman, in Coker v. Georgia, 433 U.S. 584, 598 (1977). Presumably Congress knew that. CAAF certainly did, acknowledging in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” even if the absence of aggravating factors meant that a particular rape could never actually be punished by death. In other words, even though Congress only exempted offenses punishable by death from the five year statute of limitations, CAAF held that the exemption applied to a rape charge that was not actually punishable by death.
That changed in 2018 with CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page). A unanimous CAAF reversed Willenbring and clarified that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” 77 M.J. at 224-225 (emphases in original). That decision is the #3 Military Justice Story of 2018.
Mangahas was a lieutenant colonel (O-5) in the Air Force facing a court-martial for a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. But she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.
Mangahas raised numerous objections, including objections based on the statute of limitations and on his due process (Fifth Amendment) right to a speedy trial. A military judge agreed with the due process objection and dismissed the charge with prejudice, in part because the passage of time caused the loss of potentially-exculpatory evidence. But the prosecution appealed and the Air Force CCA reinstated the charge.
CAAF then intervened and stayed the trial proceedings, and the court agreed to review whether Mangahas was denied his right to due process when the Government failed to investigate the allegation after it was first made in 1997. The court heard oral argument on that issue in late 2017, but during the oral argument there were questions raised about the statute of limitations. Two weeks later CAAF asked the parties to submit briefs on the statute of limitations issue. When CAAF decided the case a few months after that, it didn’t address the due process issue that it had originally agreed to review. Instead, it unanimously reversed Willenbring and explained that “the statute of limitations in this case is five years.” 77 M.J. at 225.
CAAF’s decision does not affect prosecutions for allegations from January 6, 2006 to the present, because Congress explicitly repealed the statute of limitations for rape (and other offenses) in legislation enacted on January 6, 2006. But CAAF’s decision did have an immediate effect on a number of relatively high-profile military sexual assault prosecutions involving decades-old allegations. For example, the court-martial prosecution of retired Army Major General James J. Grazioplene – for child rapes alleged to have occurred 30+ years ago – was dismissed by a military judge in March in light of Mangahas. Grazioplene was subsequently indicted by the Commonwealth of Virginia, however, trial is scheduled for April, and Grazioplene is being held without bail.
Additionally, the Air Force CCA applied Mangahas to reverse a 2017 conviction of an allegation of rape dating to 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here). In so doing, the CCA rejected the Air Force Government Appellate Division’s argument that the failure to raise the statute of limitations at trial (which Collins had failed to do) waives the issue. The CCA also rejected the Government Division’s claim that the 2006 amendment to the statute of limitations was retroactive to 2000. CAAF has not scheduled oral argument in the case.
But in December CAAF heard oral argument in a third case addressing the consequences of Mangahas. In United States v. Briggs, No. 16-0711/AF (CAAFlog case page), CAAF is considering whether the 2006 change to the statute of limitations is retroactive. Briggs was convicted in 2014 of a rape alleged to have occurred in 2005, but his defense did not raise the statute of limitations at trial. A lengthy appellate process followed (because the case was a trailer to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page)). Mangahas was decided while Briggs’ direct appeal was ongoing, and Briggs argued that the reasoning of Mangahas should apply to his case and result in the reversal of his conviction due to the expiration of the statute of limitations.
But, again, there’s a catch: Changes to statutes of limitations can be retroactive (but only to offenses where the preexisting statute of limitations had not yet expired at the time of the change, because otherwise the change violates the prohibition against ex post facto laws). So, for example, in Mangahas, where the rape was alleged to have occurred in 1997, more than five years passed between the alleged offense and the change and so the new statute of limitations could not be applied retroactively. But in Briggs only one year passed, and so the change might be applied retroactively (if that is what Congress intended).
Whether that is what Congress intended in the 2006 legislation is something that CAAF will decide in the new year.