A ruling by a U.S. military appeals court jeopardizes the Pentagon’s ability to prosecute sexual assaults committed before 2006, just as more people are coming forward with years-old allegations as part of the #MeToo movement.
The government argued that anyone facing a rape allegation technically could have been sentenced to death under criteria the military used in cases of rape between the fall of 1986 and the fall of 2006. A death sentence in the military has not occurred in decades, but applying that standard to the case as though it were a possibility would have left the statute of limitations open.
The ruling will make it more difficult to charge suspects in similar cases from that time period, military justice experts said.
The decision is a “pretty dramatic reversal of precedent,” said Zachary D. Spilman, who left the active-duty Marine Corps in 2014 and now writes about military appeals cases on the website CAAFlog. It’s uncertain how the case could affect others in which people have been convicted on rape charges for actions in the 20-year window, he said.
“The bottom-line answer that I can give you is that prosecuting old sexual-assault cases just got much harder, if not impossible,” Spilman said.
Legislation passed by Congress in 2006 explicitly says that rape cases have no statute of limitations under the Uniform Code of Military Justice, but cases before then are subject to laws at the time of the crime.
Cases before 1986 had a five-year statute of limitations. But from 1986 to 2006, the military used more ambiguous criteria that said any offense punishable by death, including rape, “may be tried and punished at any time without limitation.”
The new ruling was issued as the Army was preparing for a court-martial in a highly unusual case in which the military recalled a retired senior officer to face charges years after his retirement.
Maj. Gen. James J. Grazioplene, who retired in 2005, is accused of repeatedly sexually assaulting a girl between 1983 and 1989. The accusations first came to the Army’s attention in 2015, when the alleged victim, now 46, reported them.
The Washington Post does not identify the victims of alleged sexual assaults.
After reviewing the evidence, Maj. Gen. Michael L. Howard, who is overseeing the case, decided in December that the case should proceed to court-martial. Grazioplene’s defense lawyers have challenged that, arguing in a motion for dismissal that none of the allegations fall within the past five years.
The defense team also noted that earlier this month, the appeals court cited a 1977 Supreme Court case, Coker v. Georgia, that held that a death sentence is a “grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.”
The prosecution countered with a Feb. 14 motion that argued the court should wait until a ruling in the Mangahas case, which it said “frustrates the intent of Congress by limiting the prosecution of crimes ‘punishable by death.'”
Shaunteh Kelly, an Army spokeswoman, said the judge in Grazioplene’s case, Army Col. Daniel Brookhart, is evaluating the motion to dismiss the case and will issue a ruling. The timing is not clear.
James Weirick, a retired Marine lawyer, said the new ruling seems to leave the Army with little room to continue pursuing the prosecution of Grazioplene. The only court higher than the U.S. Court of Appeals for the Armed Forces for military cases is the U.S. Supreme Court, and it has rarely heard cases involving military justice.
“Just as a matter of law, you won’t be able to try him for any of these offenses,” Weirick said.
Other cases involving old allegations are probably already under review within the military justice system, he said.
“There definitely have been cases like this, and I’m assuming there will continue to be cases like this,” he said. “People come forward sometimes many years after the original case.”