Amended in Senate April 30, 2014

Amended in Senate April 21, 2014

Amended in Senate April 7, 2014

Senate Bill No. 1422

Introduced by Senator Padilla

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(Coauthors: Senators Correa, Hueso, and Lieu)

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February 21, 2014

An act to add Sections 58 and 470.5 to the Military and Veterans Code, relating to military courts.

LEGISLATIVE COUNSEL’S DIGEST

SB 1422, as amended, Padilla. Military courts: sexual assault: courts-martial.

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.

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.

This bill would require the department, on or before begin delete March end delete begin insert July end insert 1 of each year, to report begin insert prescribed information end insert to the Governor, the Legislature, the Senate Committee on Veterans Affairs, and the Assembly Committee on Veterans Affairs begin delete certain information end delete regarding the federal government’s begin insert activities relating to end insert sexual assault prevention and begin delete 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. end delete begin insert response. end insert

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This

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begin insert The end insert bill would begin delete prescribe procedures under which end delete begin insert restrict the authority of end insert the department or the California National Guard begin delete may end delete begin insert to end insert assert jurisdiction over cases of begin delete rape, end delete sexual assault, begin delete forcible sodomy, end delete or an attempt of begin delete those offenses, end delete begin insert that offense, end insert by a member of the begin delete California National Guard end delete begin insert active militia when performing military duty under federal law or while on state duty orders, to occasions end insert when a begin delete district attorney or other equivalent end delete civilian prosecutorial authority refuses to prosecute on behalf of the state. The bill would require a member of the begin delete California National Guard end delete begin insert active militia end insert recommended for court-martial pursuant to a specified hearing for begin delete any of the previously described offenses end delete begin insert sexual assault, or an attempt of that offense, end insert to be tried by general court-martial.

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This

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begin insert The end insert bill would prohibit a convening authority from overturning a conviction of begin delete rape or end delete sexual assault handed down by a general court-martial. begin delete A end delete begin insert Under the bill, no end insert statute of limitations would begin delete not end delete apply to cases subject to the jurisdiction of the military court, and the bill begin delete also end delete 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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The bill would define “sexual assault” to include specific crimes.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

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

58.  

Notwithstanding Sections 9795 and 10231.5 of the
Government Code, on or before begin delete March end delete begin insert July end insert 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. begin insert Reporting on restricted cases shall be limited
to aggregated statistical data so that the privacy of victims is
protected. Reporting on unrestricted cases shall be limited to
aggregated statistical data, but shall include, at a minimum, the
following subcategories: end insert

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(A) Types of crimes.

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(B) Types of victims.

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(C) Status of investigations.

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(D) Status of prosecutions.

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(E) Status of department administrative actions.

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(4) Analyses of the matrices of the number of sexual assaults
involving service members. begin insert The analyses shall include analysis
of data and trends in comparison to state data from previous years
and, to the degree possible, comparisons of state data and trends
and data and trends from other branches and components of the
United States Armed Forces, including both active and reserve
components, including the National Guard of other states and
territories. end insert

(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.

SEC. 2.  

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

470.5.  

(a) A member of the begin delete California National Guard who,
while on state or federal orders, end delete begin insert active militia who, when
performing military duty under Title 32 of the United States Code
or while on state orders, end insert violates a provision of the Penal Code
for begin delete rape, end delete sexual assault, begin delete forcible sodomy, end delete or an attempt of begin delete any of
these offenses, end delete begin insert that offense, end insert 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 begin delete only end delete claim jurisdiction begin insert only end insert
under the Uniformed Code of Military begin delete Justice, end delete begin insert Justice (UCMJ) end insert as
incorporated by this code, if the district attorney, or other
equivalent civilian prosecutorial authority, refuses to pursue a
criminal prosecution of begin delete a member of the California National Guard. end delete
begin insert that member. end insert

(b) (1) Subject to subdivision begin delete (b), end delete begin insert (a), end insert a member of the
begin delete California National Guard end delete begin insert active militia end insert recommended for
court-martial pursuant to an Article 32 begin delete (10 U.S.C. Sec. 832) end delete hearing
begin insert (10 U.S.C. Sec. 832), as authorized by the UCMJ as incorporated
by this code, end insert for begin delete rape, end delete sexual assault, begin delete forcible sodomy, end delete or an attempt
of begin delete any of these offenses end delete begin insert that offense, end insert shall be tried by general
court-martial.

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

(3) A member of the begin delete California National Guard end delete begin insert active militia end insert
who is found guilty of begin delete rape, end delete sexual assault, begin delete forcible sodomy, end delete or an
attempt of begin delete any of these offenses, end delete begin insert that offense end insert 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
begin delete California National Guard end delete begin insert active militia end insert 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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(c) As used in this section, “sexual assault” means conduct
constituting any of the crimes defined in the following provisions
of the Penal Code:

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(1) Section 243.4 of the Penal Code.

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(2) Chapter 1 (commencing with Section 261) of Title 9 of Part
1 of the Penal Code.

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(3) Section 286 of the Penal Code.

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(4) Subdivision (a) or (b), or paragraph (1) of subdivision (c),
of Section 288 of the Penal Code.

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(5) Section 647.6 of the Penal Code.

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