Statute of Limitations

vietnam war imagecourtmartialThe Statute of Limitations time- bars prosecutions. The standard statute of limitations is five years. See UCMJ art. 43(a). Statute of limitations is tolled when the summary court-martial convening authority receives the sworn charges. See UCMJ art. 43(b)(1).

Offenses without a statute of limitations

UCMJ art. 43(a). Offenses without a statute of limitations include: absence without leave, missing movement in a time of war; murder, rape and rape of a child, and any offense punishable by death. In Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998), aff’d, 57 M.J. 321 (C.A.A.F. 2002), the Court found that the statute of limitations under Article 43 does not bar trial for rape, as any offense “punishable by death” may be tried at any time without limitation, even if it is referred as a noncapital case. See also United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004).

Child Abuse Offenses

UCMJ art. 43(b)(2)(B) defines “child abuse offense.”

Prior to 24 November 2003, the statute of limitations for child abuse offenses was 5 years.

Effective 24 November 2003, the statute of limitations for child abuse offenses was amended so that an accused could be tried as long as sworn charges were received by the SCMCA before the victim reached the age of 25.

Effective 6 January 2006, the statute of limitations for child abuse offenses was amended once again, and an accused may now be tried for a child abuse offense as long as sworn charges are received by the SCMCA during the life of the child, or within 5 years of the offense, whichever is longer.

The applicable statute of limitations is the one effective at the time of the commission of the offense. See United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000). The Court held that the statute of limitations codified at 18 U.S.C. § 3283, which permits prosecution for offenses involving sexual or physical abuse of children under the age of 18 until the child reaches the age of 25, does not apply to courts-martial as UCMJ Article 43 provides the applicable statute of limitations for courts-martial.

Effect of Amendments to Art. 43

bestmilitarydefenseucmjdefenselawyer262An amendment to the statute of limitations may not revive and extend a statute of limitations that had run prior to the amendment. See Stogner v. California, 539 U.S. 607 (2003), where the Court held that reviving time-barred offenses violated the Ex Post Facto Clause.

Extended Statute of Limitations for Certain Crimes in a Time of War

UCMJ Art. 43.

Article 43(a). Covers AWOL and missing movement in a time of war. May be tried and punished at any time without limitation.

Time of War for purposes of Art. 43(a) is a de facto determination. See Broussard v. Patton 466 F.2d 816 (9th Cir. 1972), where the Court held that the “’time of war’ refers to de facto war and does not require a formal Congressional declaration”.

Korean Conflict

United States v. Ayers 15 C.M.R. 220 (C.M.R. 1954), holding that the Korean Conflict is time of war for purposes of Article 43(a)). See also United States v. Shell, 23 C.M.R. 110 (C.M.R. 1957). Armistice on July 27, 1953 terminated hostilities.

Vietnam Conflict

United States v. Anderson, 38 C.M.R. 386 (C.M.R. 1968), holding that as of the Gulf of Tonkin Resolution on Aug. 10, 1964, the Vietnam Conflict is time of war for purposes of Article 43(a)). See also United States v. Michaud, 48 C.M.R. 379 (N.C.M.R. 1973) and United States v. Reyes, 48 C.M.R. 832 (A.C.M.R. 1974).

Article 43(f). Covers crimes against the United States or any agency thereof involving frauds, real or personal property, and contracting. Art. 43(f)(1–3).

Statute of limitations is suspended during the time of war and for three years after the termination of hostilities. Art. 43(f).

“Time of War.” United States v. Swain, 27 C.M.R. 111 (C.M.A. 1958). Korean Conflict constituted a time of war for purposes of Article 43(f)). There is no military caselaw addressing whether OIF or OEF constitute a “time of war” for purposes of Art. 43(f). For arguments that OIF and OEF should be considered a time of war for Art. 43. One federal district court has concluded that both OIF and OE were, at one point, a time of war, invoking the federal analogue to Article 43(f), 18 U.S.C. § 3287. See United States v. Prosperi, 2008 U.S. Dist. LEXIS 66470 (Dist. Mass. Aug. 29, 2008).