Amended in Senate April 21, 2014

Amended in Senate April 7, 2014

Senate Bill No. 1422

Introduced by Senator Padilla

February 21, 2014

An act to add begin delete Section 470.1 end delete begin insert Sections 58 and 470.5 end insert to the Military and Veterans Code, relating to military courts.

LEGISLATIVE COUNSEL’S DIGEST

SB 1422, as amended, Padilla. Military courts: sexual assault: begin delete reporting. end delete begin insert courts-martial. end insert

Existing law provides that the military courts of this state are general courts-martial, special courts-martial, summary courts-martial, and courts of inquiry. Existing law provides that general, special, and summary courts-martial have the power to try and adjudge specified members of the active militia. Existing law establishes various sexual assault offenses, including the offenses of rape, unlawful sexual intercourse, and abduction.

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This bill would authorize a person subject to the jurisdiction of a military court of the state to report a sexual assault offense, as provided.

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Existing law establishes the Military Department, which includes the office of the Adjutant General, the California National Guard, the State Military Reserve, the California Cadet Corps, and the Naval Militia. Federal laws and regulations governing the United States Army, Navy, Air Force, and National Guard and not in conflict with state law are adopted with respect to the state military forces.

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This bill would require the department, on or before March 1 of each year, to report to the Governor, the Legislature, the Senate Committee on Veterans Affairs, and the Assembly Committee on Veterans Affairs certain information regarding the federal government’s sexual assault prevention and response activities for the previous federal fiscal year, as well as any plans for the prevention of and response to sexual assault in the current federal fiscal year.

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This bill would prescribe procedures under which the department or the California National Guard may assert jurisdiction over cases of rape, sexual assault, forcible sodomy, or an attempt of those offenses, by a member of the California National Guard when a district attorney or other equivalent civilian prosecutorial authority refuses to prosecute on behalf of the state. The bill would require a member of the California National Guard recommended for court-martial pursuant to a specified hearing for any of the previously described offenses to be tried by general court-martial.

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This bill would prohibit a convening authority from overturning a conviction of rape or sexual assault handed down by a general court-martial. A statute of limitations would not apply to cases subject to the jurisdiction of the military court, and the bill also would require the punishment for a conviction of any of the specified offenses to be issued as directed by the general court-martial, and to include, at a minimum, dismissal or dishonorable discharge.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 58 is added to the end insert begin insert Military and Veterans
Code end insert begin insert , to read: end insert

begin insert

begin insert 58. end insert   

Notwithstanding Sections 9795 and 10231.5 of the
Government Code, on or before March 1 of each year, the
department shall report the following information to the Governor,
the Legislature, the Senate Committee on Veterans Affairs, and
the Assembly Committee on Veterans Affairs:

(a) For the previous federal fiscal year:

(1) The policies, procedures, and processes in place or
implemented by the Sexual Assault Prevention and Response
(SAPR) Program during that federal fiscal year in response to
incidents of sexual assault.

(2) An assessment of the implementation of the policies and
procedures on the prevention, response, and oversight of sexual
assaults in the military to determine the effectiveness of SAPR
policies and programs, including an assessment of how service
efforts executed federal Department of Defense SAPR priorities.

(3) Matrices for restricted and unrestricted reports of the
number of sexual assaults involving service members, that includes
case synopses, and disciplinary actions taken in substantiated
cases and relevant information.

(4) Analyses of the matrices of the number of sexual assaults
involving service members.

(b) For the current federal fiscal year, any plans for the
prevention of and response to sexual assault, specifically in the
areas of advocacy, healthcare provider and medical response,
mental health, counseling, investigative services, legal services,
and chaplain response.

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begin insert SEC. 2. end insert   

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begin insert Section 470.5 is added to the end insert begin insert Military and Veterans
Code end insert begin insert , to read: end insert

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begin insert 470.5. end insert   

(a) A member of the California National Guard who,
while on state or federal orders, violates a provision of the Penal
Code for rape, sexual assault, forcible sodomy, or an attempt of
any of these offenses, shall be prosecuted by the office of the district
attorney or other equivalent civilian prosecutorial authority with
appropriate jurisdiction. The Military Department or California
National Guard may only claim jurisdiction under the Uniformed
Code of Military Justice, as incorporated by this code, if the district
attorney, or other equivalent civilian prosecutorial authority,
refuses to pursue a criminal prosecution of a member of the
California National Guard.

(b) (1) Subject to subdivision (b), a member of the California
National Guard recommended for court-martial pursuant to an
Article 32 (10 U.S.C. Sec. 832) hearing for rape, sexual assault,
forcible sodomy, or an attempt of any of these offenses shall be
tried by general court-martial.

(2) Notwithstanding any other provision of the Uniform Code
of Military Justice (UCMJ), a convening authority in the California
National Guard, as authorized by the UCMJ as incorporated by
this code, shall not overturn a sexual assault or rape conviction
issued by a general court-martial.

(3) A member of the California National Guard who is found
guilty of rape, sexual assault, forcible sodomy, or an attempt of
any of these offenses, shall be punished as the general
court-martial may direct, subject to Section 456, and shall include,
at a minimum, dismissal or dishonorable discharge.

(4) There is no statute of limitations for a member of the
California National Guard to be charged with rape or sexual
assault when tried and punished by a general court-martial as
provided in this section.

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SECTION 1.  

Section 470.1 is added to the Military and
Veterans Code, to read:

470.1.  

Notwithstanding any other law, a person subject to the
jurisdiction of a military court of the state may report a crime
described in Chapter 1 (commencing with Section 261) of Title 9
of Part 1 of the Penal Code to the civil authorities.

end delete