Petition available here. The question presented is:
Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), and held that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed Briggs’ rape conviction from 2014 based on an allegation dating to 2005.
CAAF’s clarification of the statute of limitations for rape in Mangahas was the #3 Military Justice Story of 2018.
In Briggs, the Air Force Appellate Government Division argued to CAAF that “Congress, in passing the 2006 amendment, intended not to change the law, but rather to codify the holding of Willenbring and clarify the correct statute of limitations for rape.” Gov’t Div. Br. at 18 (emphases in original) (discussed here). CAAF explicitly rejected the argument for two reasons:
First, the 2006 amendment to Article 43(a), UCMJ, was not limited to rape; it also eliminated the previous five-year period of limitations for unpremeditated murder. Congress therefore did not intend the 2006 amendment simply to maintain the status quo. Second, even if Congress believed that the amendment was codifying existing law with respect to the statute of limitations for rape, that belief alone would not imply that Congress intended for the amendment to apply retroactively. In such circumstances, Congress would have had no reason to consider the issue of retroactivity. And if Congress did not actually decide to make the statute apply retroactively, then the presumption of non-retroactivity should control.
Briggs, 78 M.J. at 294.
The cert. petition repeats that argument, along with some others such as:
even assuming that Congress designed a statute of limitations for military rape that turns on whether capital punishment for that crime is constitutionally permissible, Congress correctly determined that the Constitution does not foreclose capital punishment for rape in the military context.
Pet. at 17. Additionally, the petition claims that:
Allowing the CAAF’s flawed construction of Article 43 to remain in place would subvert the military’s concerted effort to eradicate sexual assault, erode confidence in the military-justice system, and fuel the impression that “nothing will happen to the perpetrator” of military rapes, all of which could further deter sexual-assault reporting and ultimately undermine military effectiveness.
Pet. at 23-24 (quoting Response Systems Panel report at 60) (modification in original).
The petition also challenges CAAF’s decision in Mangahas – even though certiorari was not sought in that case – with the assertion:
The CAAF erred in United States v. Mangahas, 77 M.J. 220 (2018), by abandoning that longstanding construction [of the statute of limitations for rape].
Pet. at 11.