Advocates for military justice reform are hoping that a Supreme Court hearing on Tuesday could lead the way to restoring tougher sentences for some rapists who have avoided sentences due to loopholes in the law.
The Supreme Court is being asked by the Justice Department to review a military court decision that led to the overturning of multiple rape convictions due to a five-year statute of limitation for rapes in the military prior to 2006.
This will also be the first time the Supreme Court addresses a sexual assault issue in the #MeToo era. In recent months, public attention has turned to the epidemic of military sexual assault following the tragic murder this year of Vanessa Guillén, a soldier based at Fort Hood, Texas.
Sexual abuse in the military is considered to be a major cause of post-traumatic stress disorder, equal to if not worse than trauma due to combat.
By the Pentagon’s own admission, the estimated number of sexual assaults has been increasing, with 20,500 in 2018. One out of 16 women in the military reported being sexually assaulted within the last year.
The Supreme Court is hearing arguments in a case involving three men in the Air Force whose rape convictions were overturned in 2018 when the top military appeals court ruled that a five-year statute of limitations existed for military sexual assault in cases that occurred prior to the passage of an amendment in 2006 that removed any time limit.
One of the cases involved a taped confession recorded by Air Force prosecutors. If successful, the sentences against the three men could be reinstated.
Harmony Allen, one of three survivors whose rapist was freed by the military court ruling hopes the case could boost the fight for justice for all survivors of military sexual assault.
Allen is part of a growing campaign to lobby for military justice reform in Congress, including a bipartisan bill named for Vanessa Guillén. The bill seeks to create an independent legal process for prosecuting cases involving rape and sexual harassment, by removing commanding officers from the decision-making process.
Critics say the military chain of command has almost systematically covered up sexual abuses cases in a shocking effort to protect military readiness and career advancement in a male-dominated hierarchy.
“The fact it’s taken nearly two decades and the highest court in the United States for a shot at justice, proves that the military justice system is overwhelmingly stacked against survivors,” Allen said in a statement.
“Victims of military sexual assault have been shouting from the rooftops for years, but there’s been little to no response from military leadership. It’s clear that Congress needs to step in. I hope Senate candidates recognize the responsibility they have in protecting the women and men who serve our country and commit to fixing a broken system.”
Among those who have pledged to support the military reform is Democratic Presidential candidate Joe Biden.
Allen was 19 years old when a course instructor raped and beat her on August 25, 2000, at Sheppard Air Force
Base in Texas. Master Sgt. Richard Collins was found guilty for the rape of Allen before a military court in Florida in 2017 and sentenced him to 16 and a half years in prison. But he was released after the Monaghas ruling in 2018.
The Supreme Court is due to hear arguments about whether military courts have time limits for the prosecution of rape. The 2018 ruling by the U.S. Court of Appeals for the Armed Forces (CAAF) reversed long standing precedent with a ruling known as US v. Mangahas which established the five-year statute of limitation for rapes in the military that took place before 2006.
Allen is being supported by the group Protect Our Defenders which advocates for victims of military sexual abuse. “Multiple rapists have been set free or had pending charges dismissed because of this ruling and, if the ruling stands, countless more survivors of rape will be denied access to justice,” said Col. Don Christensen (ret.), the former Chief Prosecutor of the United States Air Force and President of Protect Our Defenders.
"The Supreme Court’s decision to review a case on military sexual assault is the culmination of years of relentless effort by survivors like Harmony advocating for justice. Their decision will have a profound effect on addressing the culture of rape and sexual assault in the military moving forward,” he added.
The Mangahas decision prohibited prosecutors from bringing charges for rape that happened before 2006 unless the offense had been reported and charged within five years. The Supreme Court will now interpret whether a time limit should exist for the prosecution of military sexual assault for cases between 1986 and 2006.
Historically, under military law, any crime must be charged within five years. But in 1986, Congress exempted crimes that were punishable by the death sentence, including rape, from the five-year statute of limitations.
In US v Mangahas, the appeals court determined that because death would never be imposed for the crime, rape did not qualify for the 1986 exemption and should fall under the five-year statute of limitations.
The charges against Mangahas were dismissed. As a result, four rape convictions were overturned and at least 10 additional cases were dismissed or not prosecuted, according to the US Justice Department.
The Justice Department asked the Supreme Court this summer to step in and reverse the decision, arguing that it "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."