Amicus Curiae Brief — United States, Petitioner v. Michael J. D. Briggs

Nos. 19-108 and 19-184

IN THE

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UNITED STATES OF AMERICA,

Petitioner,

v.

MICHAEL J.D. BRIGGS,

Respondent.

UNITED STATES OF AMERICA,

Petitioner,

v.

RICHARD D. COLLINS,

Respondent.

UNITED STATES OF AMERICA,

Petitioner,

v

HUMPHREY DANIELS III,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Armed Forces

BRIEF OF MEMBERS OF CONGRESS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

PAUL G. CASSELL

S.J. QUINNEY COLLEGE OF LAW

AT THE UNIVERSITY OF UTAH

383 South University Street

Salt Lake City, Utah 84112

JOHN S. EHRETT

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, D.C. 20036

ALLYSON N. HO

Counsel of Record

BRADLEY G. HUBBARD

PHILIP AXT

JOSEPH E. BARAKAT†

THOMAS M. MOLLOY, JR.‡

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

aho@gibsondunn.com

Counsel for Amici Curiae

†

‡

Admitted only in Washington, D.C.

Admitted only in California.

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Interest of Amici Curiae.............................................. 1

Statement .................................................................... 2

Summary of Argument................................................ 4

Argument ..................................................................... 6

I.

The Decision Below Undermines Congress’

Authority Over Military Discipline By

Rewriting The Uniform Code Of Military

Justice. .............................................................. 6

A. Statutory

Text

And

Structure

Unmistakably

Reflect

Congress’

Determination That No Statute Of

Limitations Should Apply To Rape In

The Military............................................... 7

B. Legislative History Confirms What

Statutory Text Makes Plain: Congress

Intended No Limitation On The

Prosecution Of Rape In The Military. ... 12

II. Congress Removed Any Limitations On

Prosecuting Rape In The Military To

Achieve Critical Policy Goals. ....................... 15

A. Congress Sought To Address The

Unique Harms Associated With Rape

In The Military. ..................................... 15

B. Underreporting Poses A Particular

Challenge To Prosecuting Rape In The

Military. ................................................... 18

Conclusion ................................................................. 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Burns v. Wilson,

346 U.S. 137 (1957) ................................................ 6

Chappell v. Wallace,

462 U.S. 296 (1983) ................................................ 6

Coker v. Georgia,

433 U.S. 584 (1977) ................................................ 9

Coon v. United States,

411 F.2d 422 (8th Cir. 1969) ................................ 13

Dynes v. Hoover,

61 U.S. (20 How.) 65 (1857) ................................... 6

Gustafson v. Alloyd Co.,

513 U.S. 561 (1995) .............................................. 11

Kennedy v. Louisiana,

554 U.S. 945 (2008) .......................................... 8, 16

Loving v. United States,

517 U.S. 748 (1996) ................................................ 6

Smith v. United States,

568 U.S. 106 (2013) ................................................ 7

Solorio v. United States,

483 U.S. 435 (1987) ................................................ 6

United States v. Ealy,

363 F.3d 292 (4th Cir. 2004) ................................ 12

United States v. Gallaher,

624 F.3d 934 (9th Cir. 2010) ................................ 11

United States v. Kennedy,

618 F.2d 557 (9th Cir. 1980) ................................ 13

United States v. Kubrick,

444 U.S. 111 (1979) ................................................ 7

iii

United States v. Mangahas,

77 M.J. 220 (C.A.A.F. 2018)............................. 9, 10

United States v. Manning,

56 F.3d 1188 (9th Cir. 1995) ................................ 11

United States v. Payne,

591 F.3d 46 (2d Cir. 2010) ................................... 11

United States v. Stebbins,

61 M.J. 366 (C.A.A.F. 2005)............................... 3, 9

Willenbring v. Neurauter,

48 M.J. 152 (C.A.A.F. 1998)..................... 3, 8, 9, 14

Statutes

10 U.S.C. § 843 (1994 & 2000)

(UCMJ Art. 43) ...................................... 2, 8, 10, 14

10 U.S.C. § 843 (2012 & Supp. II 2014)

(UCMJ Art. 43) .................................................... 14

10 U.S.C. § 843 (2006 & Supp. I 2007)

(UCMJ Art. 43) .................................................... 13

10 U.S.C. § 843 (1982)

(UCMJ Art. 43) .................................................... 12

10 U.S.C. § 920 (1994 & 2000)

(UCMJ Art. 120)....................................... 2, 7, 8, 10

18 U.S.C. § 3148 (1976) ............................................. 13

18 U.S.C. § 3281 ............................................ 11, 12, 13

18 U.S.C. § 3282 .................................................. 11, 12

Act of May 5, 1950, ch. 169, Pub. L. No. 81-506,

64 Stat. 107 (1950) ................................................. 8

Enrollment Act, ch. 75,

12 Stat. 731 (1863) ................................................. 8

National Defense Authorization Act for

Fiscal Year 1987, Pub. L. No. 99-661,

100 Stat. 3816 (1986) ....................................... 8, 12

iv

National Defense Authorization Act for

Fiscal Year 2006, Pub. L. No. 109-163,

119 Stat. 3136 .................................................. 3, 13

National Defense Authorization Act for

Fiscal Year 2014, Pub. L. No. 113-66,

127 Stat. 671 (2013) ............................................. 14

Legislative Materials

H.R. Conf. Rep. No. 360,

109th Cong., 1st Sess. 703 (2005) ........................ 14

H.R. Rep. No. 89,

109th Cong., 1st Sess. 332 (2005) ........................ 14

Joint Explanatory Statement,

159 Cong. Rec. H7984 (2013) ............................... 15

S. Rep. No. 331,

99th Cong., 2d Sess. 249 (1986) ........................... 13

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 14 ........................................ 6

Other Authorities

Dep’t of Defense,

Annual Report on Sexual Assault in the

Military: Fiscal Year 2018 (Apr. 2019)......... 16, 19

Dep’t of Defense,

Report of the Response Systems to

Adult Sexual Assault Crimes Panel

(June 2014) ......................................... 18, 19, 20, 21

Dep’t of Defense,

Sex Crimes and the UCMJ: A Report

for the Joint Service Committee on

Military Justice (2005) ....................... 14, 16, 17, 18

v

Dep’t of Defense, Judicial Proceedings Panel,

Report on Retaliation Related to Sexual

Assault Offenses (Feb. 2016) .................... 17, 20, 21

Dep’t of Defense, Office of People Analytics,

2018 Workplace and Gender Relations

Survey of Active Duty Members (May 2019) ......... 20

Dep’t of Veterans Affairs,

Military Sexual Trauma (May 2015) .................. 18

Kaitlin A. Chivers-Wilson,

Sexual Assault and Posttraumatic Stress

Disorder: A Review of the Biological,

Psychological and Sociological Factors

and Treatments,

9 McGill J. Med. 111 (2006) ................................. 17

Memorandum from James N. Mattis, Sec’y

of Defense, to All Members of Dep’t of

Defense: Sexual Assault Prevention

and Awareness (Apr. 18, 2018) ...................... 16, 17

Rebecca Campbell & Sheela Raja,

The Sexual Assault and Secondary

Victimization of Female Veterans:

Help-Seeking Experiences with Military

and Civilian Social Systems,

29 Psychology of Women Q. 97 (2005)................. 18

1

INTEREST OF AMICI CURIAE*

Amici are Members of Congress committed to enforcing Congress’ long-standing judgment that sexual

violence has no place in the military and that no statute of limitations bars its prosecution. To this end,

amici have all been involved in legislative efforts in

this area and seek to defend Congress’ decades-old

policy of requiring punishment for rape in the military

no matter how long ago the offense occurred.

Amici are:

• Rep. Brian Mast (R-FL)

• Rep. James R. Baird (R-IN)

• Rep. Gus Bilirakis (R-FL)

• Rep. Gilbert R. Cisneros Jr. (D-CA)

• Rep. Charlie Crist (D-FL)

• Rep. Ted Deutch (D-FL)

• Rep. Vicky Hartzler (R-MO)

• Rep. Denny Heck (D-WA)

• Rep. Kendra S. Horn (D-OK)

• Rep. Ann McLane Kuster (D-NH)

• Rep. Jackie Speier (D-CA)

• Rep. Haley Stevens (D-MI)

• Rep. Ted Yoho (D-FL)

*

Pursuant to Supreme Court Rule 37.6, amici represent that

this brief was not authored in whole or in part by any party or

counsel for any party. No person or party other than amici or

their counsel made a monetary contribution to the preparation

or submission of this brief. Respondents have granted blanket

consent to the filing of amicus curiae briefs and amici have received the written consent of the Government in accord with Supreme Court Rule 37.3.

2

STATEMENT

1. In 2005, Air Force officer Michael Briggs went

to the room of a member of his squadron and forced

her to have sex with him—ignoring her exclamations

of “no” and “stop” and her attempts to roll away from

him. The rape was so violent that she bled for days;

she was so bruised and swollen that she was unable

to sit down. In 2000, Air Force course instructor Richard Collins pushed a student in his course against the

wall, threw her to the floor, and struck her on the face

before brutally raping her. And in 1998, Air Force airman Humphrey Daniels raped a civilian in the community near his air base—in the same bed where her

child was sleeping.

2. Rape is always an evil and devastating

crime—but the harm is compounded when it occurs in

the highly regimented environment of the military,

which stresses the imperative of respecting and deferring to authority. In a setting designed to inculcate

swift and unquestioning obedience, rape is a uniquely

harmful betrayal of trust.

For too long, these dynamics have frequently deterred survivors from reporting rape in the military.

Because many survivors fear that their careers will be

damaged if they report a rape committed by a superior, egregious criminal conduct all too often goes unpunished—depriving survivors of justice and poisoning the cohesion and effectiveness of the military.

Both Congress and the military have long been

aware of these tragic realities. When the rapes in this

case were committed, Articles 43(a) and 120(a) of the

Uniform Code of Military Justice (UCMJ) treated

rape as an “offense punishable by death” to which no

3

statute of limitations applied. The Court of Appeals

for the Armed Forces adopted that view twice over,

reasoning in Willenbring v. Neurauter, 48 M.J. 152

(C.A.A.F. 1998), and United States v. Stebbins, 61

M.J. 366 (C.A.A.F. 2005), that the UCMJ recognized

no temporal limitation on prosecutions for rape. In

2006, Congress amended the UCMJ to further clarify

that no statute of limitations applies to rape in the

military. See National Defense Authorization Act for

Fiscal Year 2006 (2006 NDAA) § 553(a), Pub. L. No.

109-163, 119 Stat. 3136, 3264.

3. Following that amendment, the three survivors in these cases came forward—and justice was

served. In 2014, 2016, and 2017, courts-martial found

Briggs, Collins, and Daniels guilty of rape, dismissed

them from the Air Force, and sentenced them to confinement.

But in 2018, the Court of Appeals for the Armed

Forces broke from long-standing consensus and imported civilian death-penalty jurisprudence into the

context of military discipline. Because this Court has

held that it violates the Eighth Amendment to impose

the death penalty for rape in the civilian context, the

court of appeals reasoned that rape no longer constitutes an “offense punishable by death” under the

UCMJ, and so—in contravention of the statute’s clear

text and Congress’ important purposes—the court of

appeals grafted a five-year statute of limitations onto

the crime of rape in the military.

4. That decision reflects a profound misunderstanding of the governing legal framework that will

have grave consequences if permitted to stand.

4

First, the decision ignores the relevant text, structure, and legislative history to reach a conclusion

wholly alien to the meaning of the UCMJ. Although

this Court has the authority to decide which punishments may be constitutionally imposed for particular

offenses, the power to determine which punishments

are warranted belongs to Congress—particularly in

the context of the military, which the Constitution explicitly tasks Congress with regulating. The court of

appeals erred by rewriting statutory text and obliterating these congressional judgments.

Second, the decision overrides a congressional determination—that no statute of limitations bars the

prosecution of rape in the military—which rests on

critical policy judgments about the harms caused by

rape in the military. In addition to the profound

harms suffered by individual victims, rape has a devastating effect on unit cohesion and morale, and the

military’s hierarchical structure tends to deter survivors from coming forward. Recognizing these devastating harms, Congress adopted a policy of treating

rape in the military as an “offense punishable by

death”—and nothing permits, much less requires,

that policy judgment to be set aside.

SUMMARY OF ARGUMENT

The Constitution entrusts Congress with authority over military discipline, including the authority to

determine what (if any) statutes of limitations apply

to crimes that occur within the military. By classifying rape as an “offense punishable by death” and stipulating that “offenses punishable by death” are not

subject to statutes of limitations, Congress entrenched the policy that rape within the military is not

5

subject to any statute of limitations at all. Whether

the death penalty can be constitutionally imposed for

the rape of an adult—an open question in the specialized military context—is wholly irrelevant to the key

question here: Whether Congress determined that

the death penalty is warranted for rape in the military. In answering “no,” the court below flouted the

text, structure, and history of the statute; departed

from long-standing precedent (including its own); and

overrode Congress’ policy judgment on a matter of

grave importance to both service members as individuals and the military as a whole.

Congress’ policy judgment—that rape within the

military is so heinous and so damaging to military effectiveness that no temporal restriction should be

placed on its prosecution—is entitled to respect. Rape

in the military has devastating effects on survivors individually and military readiness generally. And the

military’s hierarchical command structure can exacerbate the understandable reluctance of rape survivors to come forward and report the crimes committed

against them. In light of those considerations, the

provisions in the Uniform Code of Military Justice

that address rape in the military have been understood for decades to reflect Congress’ intent that those

who commit the crime of rape should not be permitted

to escape justice by hiding behind the passage of time.

This Court should interpret the Uniform Code of Military Justice to reflect that intent and fulfill Congress’

exceedingly important purposes in declining to subject

the prosecution of rape in the military to temporal

limitation.

6

ARGUMENT

I.

THE

DECISION

BELOW

UNDERMINES

CONGRESS’ AUTHORITY OVER MILITARY

DISCIPLINE BY REWRITING THE UNIFORM

CODE OF MILITARY JUSTICE.

The Constitution vests authority over the framework of military discipline exclusively in Congress.

Article I expressly assigns to Congress the power “[t]o

make Rules for the Government and Regulation of the

land and naval Forces.” U.S. Const. art. I, § 8, cl. 14.

Accordingly, it has long been recognized that “the Legislative Branch has plenary control over * * * the

framework of the military establishment, including

regulations, procedures and remedies related to military discipline.” Chappell v. Wallace, 462 U.S. 296, 301

(1983).1 And this Court has deferred to congressional

regulation of the military in myriad contexts. See

Solorio v. United States, 483 U.S. 435, 447–48 (1987)

(collecting cases and detailing judicial deference to

Congress’ regulation of the military in the areas of

free exercise, racial discrimination, sex discrimination,

free expression, right to counsel, and due process).

1

See also Burns v. Wilson, 346 U.S. 137, 140 (1957) (“Military

law * * * exists separate and apart from the law which governs

in our federal judicial establishment. * * * The Framers expressly entrusted that task to Congress.”); Dynes v. Hoover, 61

U.S. (20 How.) 65, 79 (1857) (“Congress has the power to provide

for the trial and punishment of military and naval offences.”);

Loving v. United States, 517 U.S. 748, 777–78 (1996) (Thomas,

J., concurring in the judgment) (“In light of Congress’ express

constitutional authority to regulate the Armed Forces, and the

unique nature of the military’s mission, we have afforded an unparalleled degree of deference to congressional action governing

the military.”) (internal citation omitted).

7

Congress’ power to regulate military discipline

goes hand in hand with its power to establish statutes

of limitations that govern the prosecution of improper

conduct. Statutes of limitations “reflect[ ] a policy

judgment by the legislature” regarding when (if at all)

“the lapse of time” renders “criminal acts ill suited for

prosecution.” Smith v. United States, 568 U.S. 106,

112 (2013).

The decision below seriously undermines Congress’ plenary authority over military discipline by erroneously imposing a five-year limitations period on

prosecuting rapes in the military perpetrated before

2006. As text, structure, and history all make abundantly clear, that most certainly was not Congress’ intent. Cf. United States v. Kubrick, 444 U.S. 111, 125

(1979) (statutes of limitations should be given “effect

in accordance with what [the Court] can ascertain the

legislative intent to have been”).

Congress considers rape in the military to be

among the most heinous offenses that can be committed, and its express constitutional authority to regulate military discipline is seriously eroded when

courts fail to apply its enactments by their plain and

unmistakable terms.

A. Statutory Text And Structure Unmistakably Reflect Congress’ Determination That No Statute Of Limitations

Should Apply To Rape In The Military.

At the time respondents raped their victims, the

text of the UCMJ unambiguously reflected Congress’

determination that rape in the military is not subject

to a statute of limitations. Article 120 provided that

8

rape “shall be punished by death or such other punishment as a court-martial may direct.” 10 U.S.C.

§ 920(a) (1994 & 2000).2 And Article 43 stated that

“any offense punishable by death[ ] may be tried and

punished at any time without limitation.” 10 U.S.C.

§ 843(a) (1994 & 2000) (emphasis added).3

Those two clauses plainly expressed Congress’

policy determination that rape is so repugnant—and

so destructive to military readiness—that perpetrators cannot be shielded by any statute of limitations.

For over two decades, the Court of Appeals for the

Armed Forces read those two interdependent clauses

to mean exactly what they said. See Willenbring, 48

M.J. at 178–80 (“rape is an ‘offense punishable by

2

Rape in the military has been punishable by death for “more

than a century.” Kennedy v. Louisiana, 554 U.S. 945, 946 (2008)

(statement of Kennedy, J., joined by Stevens, Souter, Ginsburg,

and Breyer, JJ., respecting the denial of rehearing) (citing Enrollment Act § 30, ch. 75, 12 Stat. 731, 736 (1863)); see also Gov’t Br.

34. When Congress first enacted the UCMJ in 1950, it made rape

in the military committed during peacetime punishable by death

as well. See Act of May 5, 1950 (1950 UCMJ) art. 120(a), ch. 169,

Pub. L. No. 81-506, 64 Stat. 107, 140 (1950) (“Any person subject

to this code who commits an act of sexual intercourse * * * by force

and without [ ] consent, is guilty of rape and shall be punished by

death or such other punishment as a court-martial may direct.”).

3

Congress eliminated the statute of limitations for all offenses

“punishable by death” in 1986. See National Defense Authorization Act for Fiscal Year 1987 (1987 NDAA) § 805(a), Pub. L. No.

99-661, 100 Stat. 3816, 3908 (1986) (“A person charged with absence without leave or missing movement in time of war, or with

any offense punishable by death, may be tried and punished at

any time without limitation.”) (emphasis added); compare 1950

UCMJ art. 43(a), 64 Stat. at 121 (“A person charged with desertion or absence without leave in time of war, or with aiding the

enemy, mutiny, or murder, may be tried and punished at any

time without limitation.”).

9

death’ for purposes of exempting it from the 5–year

statute of limitations of Article 43”); Stebbins, 61 M.J.

at 369 (reaffirming Willenbring).

Then, in 2018, the court of appeals reversed

course and held—contrary to the statutes’ plain text

and Congress’ clear intent—that the crime of rape in

the military is subject to a five-year statute of limitations. United States v. Mangahas, 77 M.J. 220, 222–25

(C.A.A.F. 2018) (overruling Willenbring and Stebbins

and holding that “rape is not exempt from the five-year

statute of limitations”). The court reached that new

conclusion by importing this Court’s civilian deathpenalty jurisprudence into the military context. The

court reasoned that—because executing a civilian rapist would violate the Eighth Amendment under this

Court’s precedents—rape in the military could not

technically be “punishable by death,” which meant

that a limitations period must apply. Ibid. (citing

Coker v. Georgia, 433 U.S. 584, 598 (1977)).4

The court of appeals’ decision is profoundly

flawed. For one thing, its approach to statutory interpretation makes little sense. The court of appeals

held, in essence, that the meaning of the statutory

phrase “punishable by death” turned not on the punishment Congress explicitly authorized in the UCMJ,

but instead on whether the court of appeals thought

this Court would deem that punishment constitutionally permissible. Id. at 223 (rape not “punishable by

death” because although “the UCMJ authorized the

4

Amici agree with the Government that the court of appeals

erred by importing civilian death-penalty jurisprudence into the

military-discipline context. See Gov’t Br. 22–23, 31–39; see also

Briggs Pet. 16–20; Collins Pet. 14.

10

death sentence[ ] for rape, * * * such punishment cannot be constitutionally inflicted”). In so doing, the

court endorsed an approach to interpretation that

would make it virtually impossible for courts to ascertain the meaning of any statute with certainty, as it

would require overlaying predicted constitutional outcomes on top of the text that Congress actually

adopted.

For another thing, Congress’ meaning was perfectly clear. The interlocking provisions of Articles 43

and 120 make plain that—for limitations purposes—

Congress intended the phrase “punishable by death”

to be defined statutorily, not judicially. At the time

respondents raped their victims, Article 43 provided

that there was no limitation on prosecuting offenses

that Congress deemed so detrimental to military readiness that they were “punishable by death.” 10 U.S.C.

§ 843(a) (1994 & 2000). By providing that rape could

“be punished by death,” Article 120 conveyed Congress’ determination that rape was precisely that type

of offense. 10 U.S.C. § 920(a) (1994 & 2000).5

Neither the Mangahas decision, nor any of the respondents in this case, offers a coherent reason why

Congress would have intended the application of the

UCMJ’s statute of limitations to turn on past and future judicial determinations about whether an offense’s maximum punishment would be constitutionally permissible. More logically, application of the

5

Further highlighting the differences between the civilian and

military contexts is the fact that Article 43 also provided that no

statute of limitation applied to offenses that have no parallel in

the civilian context, like being absent without leave and missing

movement in a time of war. 10 U.S.C. § 843(a) (1994 & 2000).

11

UCMJ’s statute of limitations turns on the punishment authorized by the UCMJ itself. After all, it is an

elementary principle of statutory interpretation that

the UCMJ, “like every Act of Congress, should not be

read as a series of unrelated and isolated provisions,”

but rather as a whole. Gustafson v. Alloyd Co., 513

U.S. 561, 570 (1995).

Other courts have recognized this principle and

acknowledged that whether an offense is “punishable

by death” (or qualifies as a “capital” offense) for limitations purposes turns on the statutorily authorized

punishments for the offense, not on whether a death

sentence would be constitutionally permissible. See

18 U.S.C. §§ 3281, 3282. In United States v. Manning,

for example, the Ninth Circuit reasoned:

If the statute’s purpose derives from the nature of the offense with which the defendant

is charged and not from the potential severity

of the punishment, it remains in effect. After

all, in a very literal sense, the offense defined

[in the criminal statute] is still a “capital

crime;” the statute still authorizes the imposition of the death penalty and Congress has not

repealed it.

56 F.3d 1188, 1196 (9th Cir. 1995) (internal citations,

quotation marks, and brackets omitted); see also

United States v. Gallaher, 624 F.3d 934, 940–41 (9th

Cir. 2010) (“ ‘punishable by death’ is a calibration of

the seriousness of the crime as viewed by Congress,

not of the punishment that could actually be imposed

on the defendant in an individual case”); United States

v. Payne, 591 F.3d 46, 58–59 (2d Cir. 2010) (“[I]n determining whether an offense is ‘punishable by death’

12

* * * we look to the character of the offense and the

penalties that are set out by statute. An offense ‘punishable by death,’ within the meaning of § 3281, is one

for which the statute authorizes death as a punishment, regardless of whether the death penalty is

sought by the prosecution or ultimately found appropriate by the factfinder or the court.”); United States

v. Ealy, 363 F.3d 292, 296 (4th Cir. 2004) (“whether a

crime is ‘punishable by death’ under § 3281 or ‘capital’

under § 3282 depends on whether the death penalty

may be imposed for the crime under the enabling statute, not ‘on whether the death penalty is in fact available for defendants in a particular case’ ”).6

In sum, the operative text and structure of the

UCMJ plainly reflect Congress’ intent that the prosecution of rape in the military is not to be subject to any

temporal limitation.

B. Legislative History Confirms What Statutory Text Makes Plain: Congress Intended No Limitation On The Prosecution Of Rape In The Military.

In 1986, Congress amended Article 43 to eliminate the statute of limitations for “any offense punishable by death.” 1987 NDAA § 805(a), 100 Stat. at

3908. Before that amendment, the UCMJ already recognized that no limitation applied to the prosecution

of murder. See 10 U.S.C. § 843(a) (1982) (“aiding the

6

Daniels’s attempt to distinguish these cases on the ground

that they involve murder rather than rape is misguided. See

Daniels BIO 12–14. In each case, the defendant was not eligible

for the death penalty. Nevertheless, each case held that the statute of limitations turned on the statutorily authorized punishment—not on whether death would have been a constitutionally

permissible punishment.

13

enemy, mutiny, or murder, may be tried and punished

at any time without limitation”). Congress removed the

limitations period from all offenses that were “punishable by death” to increase the likelihood that perpetrators who committed crimes most detrimental to military readiness would face prosecution and punishment.

Moreover, Congress identified such offenses statutorily—regardless of whether this Court might deem

the authorized punishments constitutionally permissible at some future date. By explaining that “no statute of limitation would exist in prosecution of offenses

for which the death penalty is a punishment prescribed by or pursuant to the UCMJ,” the Senate Report to the 1986 amendment affirms that Congress intended Article 43 to be applied based on the UCMJ’s

text. S. Rep. No. 331, 99th Cong., 2d Sess. 249 (1986)

(emphasis added). That is also consistent with the understanding of courts—then and now—that whether

an offense was “punishable by death” turned on the

statutorily authorized punishment, not the constitutionally permissible one. See Coon v. United States,

411 F.2d 422, 425 (8th Cir. 1969) (citing 18 U.S.C.

§ 3281); see also United States v. Kennedy, 618 F.2d

557, 557–58 (9th Cir. 1980) (per curiam) (“punishable

by death” analysis turns on “existing statutory language” not on this Court’s constitutional interpretation) (citing 18 U.S.C. § 3148 (1976)).

In 2006, Congress further amended Article 43 to

make clear that both rape and rape of a child may

be prosecuted without limitation. See 2006 NDAA

§§ 552(e)–(f), 553(a), 119 Stat. at 3263–64, codified at

10 U.S.C. § 843(a) (2006 & Supp. I 2007). Those amendments followed a 2005 Department of Defense report

that recommended adding “rape and rape of a child”

14

to Article 43 to “clarif[y]” that Willenbring “is still

good law and that there is an unlimited statute of limitations for all offenses that list death as a statutorily

potential sentence—even if death is not a Constitutionally permitted punishment.” Dep’t of Defense, Sex

Crimes and the UCMJ: A Report for the Joint Service

Committee on Military Justice 285 (2005) (“Notwithstanding, the Coker prohibition against the death penalty for rape, the military statute of limitations for rape

of an adult female should continue to be unlimited.”).7

Congress was clear that the purpose of the amendment was not to alter the statute of limitations for

rape in the military, but to “clarify that rape is also an

offense with an unlimited statute of limitations.” H.R.

Conf. Rep. No. 360, 109th Cong., 1st Sess. 703 (2005)

(emphasis added). In contrast, that same Conference

Report stated that Congress was “extend[ing] the statute of limitations for certain child abuse offenses.”

Ibid. (emphasis added); see also H.R. Rep. No. 89,

109th Cong., 1st Sess. 332 (2005) (same).

Subsequent legislative history bears out this reading. In 2013, Congress again amended the UCMJ to

provide—for the first time—that sexual assault in the

military could be prosecuted without limitation. See

National Defense Authorization Act for Fiscal Year

2014 § 1703(a), Pub. L. No. 113-66, 127 Stat. 671, 958

(2013), codified at 10 U.S.C. § 843(a) (2012 & Supp. II

2014) (“Elimination of five-year statute of limitations

on trial by court-martial for additional offenses involving sex-related crimes”) (capitalization altered). The

Joint Explanatory Statement directly explained that

7

https://jpp.whs.mil/public/docs/03_Topic-Areas/02-Article_120

/20150116/58_Report_SexCrimes_UCMJ.pdf.

15

Congress was “eliminat[ing] the 5-year statute of limitations * * * for sexual assault.” Joint Explanatory

Statement, 159 Cong. Rec. H7984, at H7949 (2013)

(emphasis added). Congress’ use of “eliminate” further confirms that although Congress changed the

limitations period applicable to sexual assault in

2013, it merely clarified that rape in the military was

subject to prosecution without limitation in 2006.

The text, structure, and history of the UCMJ thus

speak with one voice: No temporal limitation applies

to the prosecution of respondents’ rapes. The court of

appeals’ judgment to the contrary cannot stand.

II. CONGRESS REMOVED ANY LIMITATIONS ON

PROSECUTING RAPE IN THE MILITARY TO

ACHIEVE CRITICAL POLICY GOALS.

Congress’ decision to impose severe penalties for

rape in the military rests on its judgment that this

crime—while always abhorrent—is uniquely pernicious in the military environment for at least two critical reasons. First, rape not only harms service members as individuals but also undermines the

discipline, morale, and good order of the military as a

whole. And second, the military context presents special difficulties that contribute to persistent underreporting that impedes the prosecution of rape.

A. Congress Sought To Address The

Unique Harms Associated With Rape

In The Military.

Since 1986, prosecution of rape in the military has

not been subject to any temporal limitations—embodying Congress’ long-standing judgment that rape in

16

the military is uniquely harmful and must be met

with the severest of penalties.8

In addition to its “devastating impact on victims,”

rape in the military “negatively affect[s] morale, good

order and discipline and the unit cohesion and combat

effectiveness of military personnel and units.” Dep’t

of Defense, Sex Crimes and the UCMJ at 2–3; see also

Gov’t Br. 5–6, 34–35. Rape is “one of the most destructive factors in building a mission-focused military.”

Memorandum from James N. Mattis, Sec’y of Defense,

to All Members of Dep’t of Defense: Sexual Assault

Prevention and Awareness (Apr. 18, 2018).9 Then-Secretary Mattis explained that “[u]nit cohesion is what

holds us together under stress and keeps us combat

effective when the chips are down.” Ibid. Sexual violence poses an existential threat to the cohesion on

which military readiness and effectiveness depend.10

8

That rape in the military has been punishable by death

“since at least 1863” reflects the seriousness with which Congress has approached this heinous crime. Kennedy, 554 U.S. at

946 (statement of Kennedy, J., respecting the denial of rehearing); see also note 2.

9

https://dod.defense.gov/portals/1/features/2018/0418_sapr

/saap-osd004331-18-res.pdf.

10

About 20,500 “penetrative or contact sexual assault[s]” were

reported across the Armed Forces in 2018, a 38 percent increase

from 2016. Dep’t of Defense, Annual Report on Sexual Assault

in the Military: Fiscal Year 2018 10 (Apr. 2019), https://www.sapr

.mil/sites/default/files/DoD_Annual_Report_on_Sexual_Assault

_in_the_Military.pdf. The Department found that just over 6

percent of servicewomen and just under 1 percent of servicemen

were victims of “sexual assault in the year prior to being surveyed.” Ibid. For women, the rate of sexual assault or rape increased by over 50 percent—to the highest level in over a decade.

Ibid.

17

Unlike in the civilian context, where survivors

can generally (though of course not always) try to

avoid future contact with their assailants, there is no

such latitude in the military. A survivor of rape in the

military “deals with the rape and the impact on her

community and also the ongoing influence of the offender on her life outside of that specific assault.”

Dep’t of Defense, Judicial Proceedings Panel, Report

on Retaliation Related to Sexual Assault Offenses 16

(Feb. 2016).11

After all, “[m]ilitary life requires that large numbers of young men and women live and work together

in close quarters that are often highly isolated.” Dep’t

of Defense, Sex Crimes and the UCMJ at 12. As a result, “[t]he deterrence of sexual offenses in such circumstances is critical to military efficiency.” Ibid. As

then-Secretary Mattis put it, “trust [is] the coin of the

realm and our bedrock in building a cohesive team,

one free of denigrating behavior.” Mattis Memorandum. When that trust is broken, the team’s effectiveness suffers as a result.

Above all, of course, is the profound harm rapists

inflict on their victims. The most common effects are

posttraumatic stress disorder, depression, and anxiety. Rape exacerbates the already prevalent problem

of PTSD in the military: about half of all women who

have been sexually assaulted experience PTSD. Kaitlin A. Chivers-Wilson, Sexual Assault and Posttraumatic Stress Disorder: A Review of the Biological, Psychological and Sociological Factors and Treatments, 9

11

http://jpp.whs.mil/Public/docs/08-Panel_Reports/04_JPP

_Retaliation_Report_Final_20160211.pdf.

18

McGill J. Med. 111, 112 (2006).12 Studies show that

“depression occurred three times as often in women

who were the victims of a sexual assault” in the military and that “sexual assault or harassment was more

closely related to anxiety symptoms than combat

stress.” Dep’t of Defense, Sex Crimes and the UCMJ

at 50.

A Veterans Affairs factsheet drives home the devastating and far-reaching effects of sexual assault, including strong emotions; feelings of numbness; trouble sleeping; difficulties with attention, concentration,

and memory; substance abuse; relationship difficulties; and both physical and mental health problems.

Dep’t of Veterans Affairs, Military Sexual Trauma 1–

2 (May 2015).13 Congress had ample reason to conclude that a crime inflicting this panoply of harms

warrants the most severe punishment and should be

prosecuted without regard to the passage of time.

B. Underreporting Poses A Particular

Challenge To Prosecuting Rape In The

Military.

Sexual assault “remain[s] chronically underreported when compared to reporting rates for other

forms of violent crime.” Dep’t of Defense, Report of the

Response Systems to Adult Sexual Assault Crimes

12

The process of post-rape care and investigation can itself trigger PTSD symptoms, referred to as “secondary victimization.” Rebecca Campbell & Sheela Raja, The Sexual Assault and Secondary

Victimization of Female Veterans: Help-Seeking Experiences with

Military and Civilian Social Systems, 29 Psychology of Women Q.

97, 97–106 (2005). A truncated limitations period can amplify the

false message that the victim’s trauma is not worth investigating.

13

https://www.mentalhealth.va.gov/docs/mst_general_factsheet

.pdf.

19

Panel 8 (June 2014).14 Survivors are often reluctant

to come forward given “society’s tendency to blame

[them] for the crime” and because they “struggle[ ]

with shame and self-blame; feelings of confusion,

helplessness, and lack of control; and the fear of the

consequences of reporting.” Id. at 59. Tragically, last

year nearly 70 percent of sexual assault victims in the

military did not report the crime. Dep’t of Defense,

Annual Report Fiscal Year 2018 at 4, 10.

For survivors of rape in the military, the problem

is even worse—they “face unique barriers to reporting

that do not exist in the civilian world.” Dep’t of Defense, Response Systems at 60. Chief among these is

the “hierarchical structure” that “focus[es] on obedience, order, and mission before self” that rests at the

heart of military service. Ibid. Enlisted members “are

taught blind obedience to every order” and are trained

“to subordinate themselves in service of the larger

goals and needs of the unit.” Id. at 62.

While this structure may be crucial to military

success, it frequently exacerbates the chronic problem

of underreporting. Id. at 60. Where a perpetrator is

a ranking superior, the survivor may be particularly

wary of reporting as doing so may seem to go against

the grain of “obedience” and “subordination”—in addition to concerns that “others will ignore or tend to disbelieve their allegations.” Id. at 60–62. The problem

is endemic. Among women who reported penetrative

sexual assault, nearly 60 percent were assaulted by

someone with a higher rank, and nearly 25 percent

were assaulted by someone in their chain of command.

14

http://responsesystemspanel.whs.mil/Public/docs/Reports/00

_Final/RSP_Report_Final_20140627.pdf.

20

Dep’t of Defense, Office of People Analytics, 2018

Workplace and Gender Relations Survey of Active

Duty Members 34 (May 2019).15

Moreover, given the close proximity in which service members typically live and work, “sexual assault

allegation[s] involving members of the same military

unit may divide loyalties among a close-knit group of

people who should be working toward a common goal.”

Dep’t of Defense, Response Systems at 60. Rather

than risk the unity and cohesion of the unit, survivors

of rape in the military often forego reporting in a

tragic effort to place the unit’s well-being above their

own. See id. at 62 (“As one sexual assault victim told

the Panel: * * * ‘I felt that reporting [the sexual assault] would distract my unit and distract me from

th[e] mission that I was given.’ ”).

These considerations heighten the fear of reprisal

that rape survivors often experience outside the military context: “The effects of retaliation on a victim can

be particularly acute in the military environment because the accused and the victim often share the same

community, the same peers, and the same mission.”

Dep’t of Defense, Report on Retaliation at 16. These

concerns are not unfounded. A 2014 survey by the

RAND Corporation indicated that 62 percent of

women on active military duty who reported unwanted sexual contact experienced some form of retaliation. Id. at 3, 11.

Similarly, the Department of Defense’s 2012 Workplace and Gender Relations Survey revealed that 47

percent of women who did not report unwanted sexual

15

https://www.sapr.mil/sites/default/files/Annex_1_2018_WGRA

_Overview_Report.pdf.

21

contact were afraid of retaliation or thought they

would be labeled as a troublemaker. Dep’t of Defense,

Response Systems at 60. Just as troubling, 43 percent

of these women did not report unwanted sexual contact in light of the negative experience of other survivors who did come forward, and 28 percent were concerned that reporting would negatively affect their

performance evaluation or chance for promotion. Id.

at 60–61. This fear of retaliation works to “erode

trust” in military organizations, “violates fundamental military values,” and “undermines a commander’s

ability to maintain good order and discipline.” Dep’t

of Defense, Report on Retaliation at 17. And it perpetuates an endless “cycle of sexual assault” and underreporting. Id. at 3.

That outcome is precisely what Congress has long

been committed to addressing by insisting that perpetrators of sexual violence in the military must face justice, no matter how long ago they committed their

crimes, and no matter how great the pressure on survivors to remain silent. Then and now, no statute of

limitations prevents the prosecution of rape in the

military—an offense so severe that Congress has determined it warrants the severest punishment.

22

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals for the Armed Forces should be reversed.

Respectfully submitted.

PAUL G. CASSELL

S.J. QUINNEY COLLEGE OF LAW

AT THE UNIVERSITY OF UTAH*

383 South University Street

Salt Lake City, Utah 84112

ALLYSON N. HO

Counsel of Record

BRADLEY G. HUBBARD

PHILIP AXT

JOSEPH E. BARAKAT†

THOMAS M. MOLLOY, JR.‡

GIBSON, DUNN & CRUTCHER LLP

JOHN S. EHRETT

GIBSON, DUNN & CRUTCHER LLP 2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

1050 Connecticut Avenue, NW

(214) 698-3100

Washington, D.C. 20036

aho@gibsondunn.com

Counsel for Amici Curiae

January 13, 2020

*

Institutional information provided only for identification purposes;

does not imply institutional endorsement.

†

Admitted only in Washington, D.C.

‡

Admitted only in California.