Statutes of limitations exist to protect accused persons from being prosecuted for conduct so distant in time that witnesses are unavailable, memories have faded, and evidence has been lost. The UCMJ has its own limitations framework, but Congress has progressively extended or eliminated time limits for serious sexual offenses. A service member who believes that an old accusation cannot be revived because too much time has passed may be operating on an outdated understanding of how the law currently reads.
The rules that apply depend on when the alleged offense occurred, what charge is contemplated, and whether the accused was in a special status at the time. The intersection of these factors requires careful legal analysis rather than a general assumption. Defense attorneys handling cases involving older allegations must examine the specific statutory framework in effect at the time of the alleged conduct and assess whether a limitations defense is genuinely available.
How the UCMJ Handles Statutes of Limitations Generally
The UCMJ establishes a general five-year statute of limitations for non-capital offenses. Under this general rule, charges must be preferred within five years of the date the alleged offense was committed. The clock runs from the date of the offense, not from the date of discovery, and it is not automatically tolled by the accused’s continued military service or by the opening of an investigation.
This five-year baseline applies to most UCMJ offenses, but it is subject to exceptions that vary by offense type. Congress has modified the limitations period for specific categories of conduct, and the applicable rule for any given case must be determined by reference to the specific offense charged and the law in effect at the time the offense was committed. Changes to the limitations framework that were enacted after the alleged offense occurred cannot extend the limitations period retroactively.
The Special Rules That Apply to Sexual Assault Charges
Congress has repeatedly extended and modified the limitations period for sexual assault offenses under the UCMJ, and the current framework reflects a sustained legislative effort to ensure that serious sexual offenses can be prosecuted even when significant time has passed since the alleged conduct. For offenses charged under Article 120, the limitations framework depends on when the alleged offense occurred and which version of the statute applied at that time.
For offenses committed after a specific date, Congress eliminated the statute of limitations entirely for certain categories of sexual assault, meaning that charges can be preferred at any time during the accused’s service, and in some cases after separation, without any limitations bar. For offenses committed before the amendment that eliminated the limitations period, the law in effect at the time of the offense controls. Defense counsel handling cases involving older allegations must identify the specific version of the statute that applied when the conduct allegedly occurred and assess whether the current prosecution complies with those limits.
When the Clock Starts and What Can Stop It
The limitations clock under Article 43 begins running on the date the alleged offense was committed. The clock is not started by discovery of the offense, reporting of the offense, or opening of an investigation. It runs from commission, and the defense that asserts a limitations bar must establish precisely when the clock began and demonstrate that the applicable period expired before charges were preferred.
Tolling provisions in Article 43 stop the clock in specific circumstances. The period does not run during any time the accused was absent without leave, was evading apprehension, or was in the custody of a foreign nation. Certain other circumstances can toll the period as well, and the government may assert tolling arguments in response to a limitations defense. Defense counsel must examine the tolling provisions carefully and assess whether any of them apply to the specific facts before concluding that a limitations defense is available.
How Old Accusations Are Investigated and Prosecuted
Accusations that arise years after the alleged conduct present distinct investigative challenges that affect both the government’s case and the defense’s ability to contest it. Witnesses whose memories may have faded will give accounts that are less precise than those of recent events. Physical evidence that was not preserved at the time may be unavailable. Electronic communications from years earlier may no longer exist on accessible platforms or devices.
The government’s approach to an old accusation typically involves extensive forensic interviewing of the complaining witness, a thorough search for any contemporaneous records, and identification of any witnesses who had knowledge of the alleged events close in time. The defense’s parallel investigation must assess the reliability of accounts that have developed over years, the availability of records that contradict the narrative being advanced, and the specific factors that affected the reporting delay in ways that may be relevant to the credibility analysis.
Defense Strategies When Charges Are Filed Years After the Alleged Offense
The passage of time is a double-edged factor in an old accusation case. The defense can use the delay to argue that memories are unreliable, that evidence favorable to the accused has been lost or destroyed, that the accused’s life in the intervening years reflects character inconsistent with the charged conduct, and that the fairness of the proceeding has been compromised by the government’s failure to act more promptly.
The specific arguments available depend on what the delay has actually cost the defense. A witness who would have testified favorably but has since died, relocated beyond the reach of process, or lost their recollection due to the passage of time is a concrete loss that the defense can present as prejudicial. Physical evidence that was not preserved is another documented harm. The defense that can show specific, concrete prejudice from the delay, rather than the general observation that memories fade over time, is in the strongest position to argue that the charges should be dismissed or that the panel should be instructed to weigh the delay in assessing the government’s evidence.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.