Amended in Assembly June 10, 2014

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

(Coauthors: Senators Correa, Hueso, and Lieu)

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 July 1 of each year, to report prescribed information to the Governor, the Legislature, the Senate Committee on Veterans Affairs, begin delete and end delete the Assembly Committee on Veterans Affairs begin insert , the Attorney General, and the United States Attorneys in California end insert regarding the federal government’s activities relating to sexual assault prevention and response.

The bill would restrict the authority of the department or the California National Guard to assert jurisdiction over begin delete cases of sexual assault, or an attempt of that offense end delete begin insert qualifying sexual assault offenses, as defined end insert , by a member of the active militia when begin delete performing military duty under federal law or while on state duty orders end delete begin insert subject to the Uniform Code of Military Justice end insert , to occasions when a civilian prosecutorial authority refuses to prosecute on behalf of the state. The bill would require a member of the active militia recommended for court-martial pursuant to a specified hearing for begin insert a qualifying end insert sexual assault begin insert offense end insert , or an attempt of that offense, to be tried by general court-martial.

The bill would prohibit a convening authority from overturning a conviction of begin insert a qualifying end insert sexual assault begin delete handed down end delete begin insert offense issued end insert by a general court-martial. begin insert The bill would require the convening authority to dispose of cases on appeal in accordance with the decision of the Courts-Martial Appellate Panel. end insert Under the bill, no statute of limitations would apply to cases subject to the jurisdiction of the military court, and the bill 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.

The bill would define begin insert the term end insert “sexual begin delete assault” end delete begin insert assault crime end insert begin insert ” end insert to include begin delete specific crimes end delete begin insert specified offenses under existing law end insert .

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 July 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 begin insert , the Attorney General,
and the United States Attorney for each district in California end insert :

(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. 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:

(A) Types of crimes.

(B) Types of victims.

(C) Status of investigations.

(D) Status of prosecutions.

(E) Status of department administrative actions.

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

(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 active militia who, when
begin delete performing military duty under Title 32 of the United States Code
or while on state orders end delete begin insert subject to the Uniform Code of Military
Justice (UCMJ) as incorporated by this code end insert , violates a provision
of the Penal Code for begin insert a end insert sexual assault begin insert crime as defined in
subdivision (c) end insert , or an attempt of that offense, shall be begin delete prosecuted end delete
begin insert subject to prosecution end insert by the office of the district attorney or other
equivalent civilian prosecutorial authority with appropriate
jurisdiction. The Military Department or California National Guard
may claim jurisdiction only under the begin delete Uniformed Code of Military
Justice (UCMJ) end delete begin insert 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 that member.

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

(2) Notwithstanding any other provision of the UCMJ as
incorporated by this code, a convening authority in the California
National Guard or in the Military Department, as authorized by
the UCMJ as incorporated by this code, shall not overturn a begin delete sexual
assault conviction end delete begin insert conviction for a qualifying sexual assault offense end insert
issued by a general court-martial. begin insert On appeal, the convening
authority shall dispose of the case in accordance with the decision
of the Courts-Martial Appellate Panel, as authorized by this code. end insert

(3) A member of the active militia who is found guilty of begin delete sexual
assault end delete begin insert a qualifying sexual assault offense end insert , or an attempt of that
offense shall be punished as the general court-martial may direct,
subject to Section 456, and begin insert that punishment end insert shall include, at a
minimum, dismissal or dishonorable discharge.

(4) There is no statute of limitations for a member of the active
militia to be charged with begin delete rape or sexual assault end delete begin insert a qualifying sexual
assault offense, end insert when tried and punished by a general court-martial
as provided in this section.

(c)  begin delete As used in end delete begin insert For purposes of end insert this section, “sexual begin delete assault” end delete
begin insert assault crime” end insert means conduct constituting any of the crimes
defined in the following provisions of the Penal Code:

(1) Section 243.4 of the Penal Code.

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

(3) Section 286 of the Penal Code.

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

(5) Section 647.6 of the Penal Code.

begin insert

(d) For purposes of this section, a “qualifying sexual assault
offense” under the Uniform Code of Military Justice is one that
violates any of the following provisions of that code, or an attempt
thereof:

end insert begin insert

(1) Subdivision (a) or (b) of Article 120 (10 U.S.C. Sec. 920(a)
and (b)).

end insert begin insert

(2) Article 120b (10 U.S.C. Sec. 920b).

end insert begin insert

(3) Article 125 (10 U.S.C. Sec. 925).

end insert begin insert

(e) Sex offender registration requirements for state military
convictions contained in Sections 290 to 290.024, inclusive, of the
Penal Code, are applicable to persons convicted of a qualifying
sexual assault offense, or of the attempt or conspiracy to commit
that offense.

end insert

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CORRECTIONS:

Digest--Pages 1 and 2.

Text--Page 5.

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