BY: Paris Nguyen
Paris is a sophomore in the School of Foreign Service majoring in International Politics. He is a line editor for the Georgetown University Undergraduate Law Review.
In a 2019 study on sexual misconduct in the military conducted by the Department of Defense, accountability and discipline were identified as crucial factors that were vital to a positive work culture. Holding service members liable for their actions and enforcing punishment led to a more structured and positive environment while tolerating negative behaviors created harmful working environments.[1] Surveys conducted in the study further revealed that senior leadership had a history of ignoring infractions concerning sexual harassment.[2] Some individuals did not even believe those infractions were inappropriate.[3] By ignoring any cases of sexual harassment, the leadership within the military effectively normalized the inappropriate behavior. This creates a toxic military culture that weakens the “zero tolerance” policy of the armed forces. Since 2012, the number of reported sexual assaults within the US military has rapidly increased and reached an all-time high of 6,236 cases in 2019.[4] Even more alarming is the fact that this number fails to account for the unreported assaults and cases involving civilians or foreign nationals. The US military has a clear problem with sexual assault that stems from its culture of complacency towards offenders, and unfortunately, there exists no easy solution to this issue. However, the recent Supreme Court case of United States V Briggs (2020) serves as a small step in the right direction by holding offenders and leaders accountable for their actions.
In February of 2014, LtCol Michael Briggs (USAF) was court-martialed in violation of Article 120(a), Uniform Code of Military Justice (UCMJ), for raping Airman First Class DK, a subordinate of his flight squadron.[5] The violation itself occurred in 2005, eight years before the court-martial. Under the current UCMJ, the statute of limitations for the majority of offenses is five years. However, military offenses, “punishable by death, may be tried and punished at any time without limitation.” under Article 43(a).[6] Rape is one of 14 offenses still punishable by death under the UCMJ today. Therefore, the case moved forward resulting in a military judge finding Briggs guilty of rape and sentencing him to dismissal from the Air Force, five months imprisonment, and a reprimand.[7]
Contrary to the UCMJ, Coker V Georgia (1977) established that the death penalty cannot be administered for cases of rape under the 8th amendment.[8] Using this precedent, Briggs took the case to the Court of Appeals for the Armed Forces (CAAF) arguing that the five-year statute of limitations should apply since only offenses punishable by death can be tried indefinitely under UCMJ. The CAAF overturned the Court Martial concluding that “punishable by death” in Article 43(a) of the UCMJ meant “capable of punishment by death when all applicable law is taken into account.”[9] Since Coker V Georgia was an “applicable law,” the case of Briggs was therefore subject to the five-year statute of limitations. The case was dismissed by the CAAF, and Briggs faced no consequences for his actions.
The US appealed this case to the Supreme Court and was granted certiorari on November 15, 2019. In an 8-0 decision, the CAAF’s ruling was overturned enabling the Air Force to reinstate the original Court Martial. In the opinion of the court, led by Justice Alito, he stated that the “punishable by death” statute of limitation exception in the UCMJ is a “term of art… defined by the specification of the punishments set out in the penalty provisions of the UCMJ.”[10] A “term of art” is a phrase that has a precise, specialized meaning.[11] In this case, the specialized meaning of “punishable by death” is tied to the UCMJ, not “all applicable law” as argued by Briggs.
Justice Alito cited three reasons for this decision. First, the UCMJ is the most natural referent for deciding what is “punishable by death,” not other external bodies of law [ie. Coker v. Georgia]. And offenses “punishable by death” includes rape under UCMJ.[12] Second, adopting an interpretation of “punishable by death” that applies “all applicable law” would create a “statute of limitations that no one could have understood with any real confidence.”[13] Essentially, applying “all applicable law” to decide whether rape is punishable by death in the case of Briggs creates numerous other unresolved and complex Constitutional questions. Lastly, because the purpose of the five-year statute of limitations in the UCMJ enacted by Congress is different from the purpose of the Eighth Amendment, the relation between the UCMJ Statute of Limitation and the eighth amendment should be taken lightly.[14] This means that the Eight Amendment should not be relied upon in this case as Briggs had done. In short, the Court believed that “punishable by death” was a term of art that allows the case to be prosecuted indefinitely under UCMJ.
The decision in United States V Briggs effectively closed the statute of limitations loophole utilized by other offenders to avoid prosecution. In 2000, Master Sgt Richard Collins violently raped Harmony Allen, a military technician. It was not until 2017 that Collins was convicted and sentenced to 16.5 years behind bars only to be released after the CAAF’s ruling on Briggs. Collins, like Briggs, had his charges dropped and walked away facing zero consequences for his actions.[15] Instances such as Briggs and Collins initially escaping justice are detrimental to the US military’s efforts to combat sexual assault because it reaffirms the lack of accountability and leadership within the military justice system and further normalizes the acceptability of sexual assault. Furthermore, it deters current and future victims from coming forward to report their assaults because they rightfully believe that not much will occur after a report is made. By reversing the CAAF’s decision, the Supreme Court helped combat the current culture of sexual assault by enabling the military to prosecute any other offenders who utilized the statute of limitations loophole. This in turn helps restore faith in the military justice system by demonstrating that offenders will face consequences for their actions. Hopefully, this will lead to more victims feeling confident enough to speak up and hold offenders accountable. In addition, as concluded by the DOD study, the accountability and discipline that emerged from the decision help to create a more structured and positive work culture. While the decision in US v. Briggs alone cannot prevent further incidents of sexual assault from occurring, it serves as a small victory in the larger battle against the current culture of sexual assault in the US military.
When asked about the military’s rampant sexual assault problem, Former Defense Secretary Chuck Hagel stated that “We need cultural change, where every service member is treated with dignity and respect, where all allegations of inappropriate behavior are treated with seriousness, where victims’ privacy is protected, where bystanders are motivated to intervene and where offenders know that they will be held accountable by strong and effective systems of justice.”[16] This necessary culture change can only begin by holding individuals accountable for their actions to demonstrate that sexual assault will not be tolerated within the US military.
[1]Department of Defense. 2019. Military Service Gender Relations Focus Groups Overview Report. [online] Available at: https://media.defense.gov/2020/Apr/30/2002291696/-1/-1/1/15-ANNEX-1-2019-MILITARY-SERVICE-GENDER-RELATIONS-FOCUS-GROUPS-OVERVIEW-REPORT.PDF
[2] Id.
[3] Id.
[4] Department of Defense. 2020. Annual Report on Sexual Assault In The Military. [online] Available at: https://media.defense.gov/2020/Apr/30/2002291660/-1/-1/1/1_DEPARTMENT_OF_DEFENSE_FISCAL_YEAR_2019_ANNUAL_REPORT_ON_SEXUAL_ASSAULT_IN_THE_MILITARY.PDF.
[5] United States v. Briggs, No. 16-0711-AF (C.A.A.F 2019)
[6] Uniform Code of Military Justice (UCMJ), 10 U. S. C. § 843(a) (2006)
[7] United States v. Briggs, No. 16-0711-AF (C.A.A.F 2019)
[8] Coker v. Georgia, 433 U.S. 584 (1977)
[9] United States v. Briggs, No. 16-0711-AF (C.A.A.F 2019)
[10] United States v. Briggs, 592 U.S. 1 (2020)
[11] Term of Art, Merriam Webster’s Dictionary. (11th ed. 2020)
[12] United States v. Briggs, 592 U.S. 1 (2020)
[13] Id.
[14] Id.
[15] Catherine Valentine, Et. al, Loophole lets convicted military rapists walk free; victim shares her story, Knoe News. (May 14, 2019)
[16] Jim Garamone, SecDef calls for culture of dignity, respect, Am. Forces Press Service. (May 8, 2013)
https://www.af.mil/News/Article-Display/Article/109247/secdef-calls-for-culture-of-dignity-respect/.
