Supreme Court Weighs Whether Troops Can Be Prosecuted For Sexual Assaults That Happened Decades Ago
Because of a legal loophole, victims of sexual assaults between 1986 and 2006 can no longer press charges, and some troops who were convicted of rape have been released from prison.
Air Force veteran Harmony Allen thought a court verdict in 2017 marked the end of protracted legal ordeal, throughout which she'd had to relive some of the worst moments of her life.
In a military courtroom, she watched as her former course instructor, Richard Collins, was tried and found guilty of raping her at Sheppard Air Force Base in Texas nearly two decades earlier. He was sentenced to over 16 years in confinement.
That's why Allen was stunned when, in 2018, her lawyer told her the conviction had been thrown out and Collins would walk free.
"I just broke down. I think I spent all day in my cry room," Allen said. "Then I was like, 'Are you going to keep crying? Or are you going to get up? Are you going to fight?'"
No new evidence had been introduced in the case. But the military's high court, the U.S. Court of Appeals for the Armed Forces, decided based on a separate case that a five-year statute of limitations applied to the crime of rape, meaning that Collins' conviction was tossed.
The military court's decision also freed two other men convicted of rapes that happened between 1986 and 2006. Lawyers for the victims are now before the U.S. Supreme Court asking that that ruling be overturned. The outcome will determine if the military can prosecute decades-old rape cases and whether the three offenders go back to prison.
A "gray area" in the law
Collins has since returned to active duty status in the Air Force, where he's getting full pay and benefits. Allen lives in the same state as he does and worries about retaliation.
"I'm only eight hours from him," she said. "He could come down here and kill me and kill my daughter. I put him through this. He's that kind of guy."
Steve Vladeck, Collins' lawyer, isn't arguing over whether his client raped anyone. Instead he's hanging his case on a legal and legislative technicality, focusing on Congress' ability to define military law.
Under the Uniform Code of Military Justice, rape is one of a handful of crimes punishable by death. The crime's severity has traditionally meant that it has no time limit for prosecution.
Congress in 2006 amended the code to make that unequivocally clear. But before Congress intervened, the U.S. Court of Appeals for the Armed Forces ruled that some rape charges were not eligible to receive a death penalty sentence, introducing a statute of limitations in those cases.
In 2018, the military court affirmed that a statute of limitations existed for rape, but only for cases between 1986 and 2006. The court said the effect of the 2006 Congressional action on those older cases was a "gray area."
"In the military, there was disagreement across the entire time period between 1986 and 2006 about whether the statute limitations was five years or non-existent," Vladeck said.
"The statute of limitations exists without regard to what we think of the offenses or the offenders," he said. "I think if you asked the individuals involved, you might have disagreement over what actually happened. But that's not anything the Supreme Court's being asked to decide this term."
A slow-moving military court process
Former Air Force prosecutor Don Christensen said it's obvious that no statute of limitation should apply. He noted that it may take several years before military sexual assault victims come forward to report crimes, because they may face retaliation, career consequences, and disbelief from peers and investigators.
"Even after a report, it takes usually — for the military — up to two years from the time an offense is reported, involving rape or sexual assault, to the time it gets to court," said Christensen, who also heads the advocacy group Protect Our Defenders. "That delay is based on a slow investigation process, because the military hasn't invested the resources into investigators that it should."
In fiscal year 2019, there were 5,699 unrestricted reports of sexual assault or rape in the military, according to the Defense Department's Sexual Assault and Prevention and Response Office. Just 363 went to trial. Of those, 138 resulted in convictions.
Christensen said there are probably few remaining cases that would be affected by the military high court's newly-imposed statute of limitations. But he said there's always a possibility that someone could come forward with a rape allegation, especially if the person was very young when the crime occurred.
"One of the cases that was dismissed as a result of this... was a woman who had been repeatedly raped by her father who retired as a general officer. So I don't, in any world, believe that she is unique," he said.
If the military's five-year statute of limitations remains in place, it would be far stricter than most civilian laws for the same crime.
"About half of U.S. states have no time limit for the most serious sexual assaults. Of the remaining states, many have extended their statutes of limitation for felony sex crimes," said Deborah Tuerkheimer, a Northwestern University law professor who studies gender-based violence and the legal response to it.
She said that change is due in large part to cases involving the Catholic Church and celebrities like Bill Cosby, where victims came forward many years after the crimes occurred. It's also because DNA evidence has become more widely accepted and can help prove cases long after the fact.
The Supreme Court is expected to rule in the spring.
This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans. Funding comes from the Corporation for Public Broadcasting.