BILL ANALYSIS Ó SENATE COMMITTEE ON VETERANS AFFAIRS Senator Ben Hueso, Chair BILL NO: SB 1422 HEARING DATE: 4/22/14 AUTHOR: Padilla VERSION: As amended 4/21/14 FISCAL: Yes VOTE: 21 SUBJECT Military courts: sexual assault. DESCRIPTION Existing law : 1.Establishes as crimes in the Penal Code, various specific acts, which often are referred to under the general term of "sexual assault." 2.Provides that the California Military Department (CMD), which includes the California National Guard, can prosecute member Soldiers and Airmen under state authority for violations of state criminal law. 3.Establishes CMD courts-martial - including summary, special and general - with increasing levels of jurisdiction and punishment authority. 4.Establishes the Courts-Martial Appellate Panel (CMAP) - the CMD's appellate tribunal. 5.Incorporates into the CMD's judicial and disciplinary regulations, insofar as is appropriate, the standards and procedures authorized by federal statute in the Uniformed Code of Military Justice (UCMJ) employed by the U.S. Armed Forces. This bill : 1.Provides - for sexual assault cases in which the accused is a member of the California National Guard -- that local civilian authorities' claims to prosecutorial jurisdiction are senior to jurisdictional claims of the CMD military justice system. 2.Provides - in instances where civilian authorities decline to prosecute and the CMD inherits jurisdiction- that certain prohibitions, restrictions and requirements are imposed on the CMD in pursuing prosecution of accused and punishment of convicted Guard members. 3.Requires the CMD to report, as specified, annually to the Governor and Legislature on the statistics and efficacy of the department's Sexual Assault Prevention and Response (SAPR) program. More specifically, the bill requires: 1.Requires the CMD to report, as specified, annually to the Governor and Legislature on the statistics and program efficacy of the department's Sexual Assault Prevention and Response (SAPR) program. 2.For sexual assault cases in which the alleged perpetrator is a National Guard member on Title 32 or State Active Duty (SAD) status, provides: a. That the local district attorney (or other appropriate civilian prosecutorial authority) shall have jurisdiction that preempts CMD prosecutorial jurisdiction. b. That the CMD may only claim jurisdiction if the civilian authority declines to pursue prosecution. c. That if the CMD gains jurisdiction and recommends a Guard member for court-martial, then the trial must be conducted by general court-martial. d. That if a Guard member is convicted of sexual assault by general court-martial, that no convening authority within the CMD may overturn that conviction. SB 1422 (Padilla) 2 e. That if a Guard member is convicted by general court-martial of rape, sexual assault, forcible sodomy, or an attempt of any such offenses, then the punishment shall include, at a minimum, dismal or dishonorable discharge from the National Guard. f. That there shall be no statute of limitations limiting when a Guard member may be charged with rape or sexual assault, when tried and punished by a general court-martial. BACKGROUND California State Militia The MilVets Code provides for a California state militia, which contains both an active militia and an unorganized militia, as follows: 1.The militia of the State consists of the active militia (which is comprised of the National Guard, State Military Reserve and Naval Militia) -- and the unorganized militia. (§120) 2.The unorganized militia consists of all persons liable to service in the militia, but not members of the National Guard, the State Military Reserve, or the Naval Militia. (§121) All able-bodied males between 18 and 45 years old who are not members of the CMD constitute the unorganized militia of the state. (§122) 3.The Governor may call the unorganized militia for active duty in case of war, rebellion, insurrection, invasion, tumult, riot, breach of the peace, public calamity or catastrophe, or other emergency or imminent danger, or may be called forth for service under the Constitution and laws of the United States. (§128) California Military Department SB 1422 (Padilla) 3 The CMD is a state department located within the executive branch. According to MilVets Code §51, the CMD is comprised of the following: " The three components of the active militia: (1) The National Guard, (2) State Military Reserve, and (3) Naval Militia. " Two additional elements: (1) The office of the Adjutant General and (2) the California Cadet Corps. The CMD's 24,000-person roster is dominated by its largest component, the California National Guard (CalGuard). The CalGuard is the largest of the 54 "state-level" National Guards located in U.S. states and territories. The CalGuard is split into two components, the larger Army National Guard (ARNG) and the Air National Guard (ANG). Each of these is commanded by a federally recognized National Guard general officer from the appropriate branch of service. The ARNG is an official component of the United States Army. The ARNG joins with its "sister" reserve component, the purely federal United States Army Reserve (USAR), and the full-time Active Component to form the total United States Army. Similarly, the ANG joins with its sister reserve component, the purely federal United States Air Force Reserve (USAFR) and the branch's Active Component to form the total United States Air Force. (Note: The National Guard system does not contain sister elements associated with the other branches of the national armed forces - the United States Navy, United States Marine Corps, or United States Coast Guard. Those military branches have only one reserve component each and all are purely federal. These reserve components have no affiliations with any state governments.) The CalGuard (ARNG and ANG combined) is comprised of about 22,000 Army and Air Force uniformed military personnel. SB 1422 (Padilla) 4 More than 95 percent of these federally recognized CalGuard soldiers and airmen are the traditional part-time citizen-soldiers (also known as M-Day soldiers). Typically, these individuals work at full-time civilian careers although some are college students. They drill with their Guard units at least one weekend per month and perform a minimum of two weeks (but sometimes longer) on active duty status in annual training. When necessary, the federal government mobilizes them onto operational active duty tours (including combat), integrating them into the federal military force within their branch of service. This mobilization is ordered under the authority of Title 10 of the U.S. Code, which generally governs the full-time active duty armed forces. When California's National Guard units are not under federal Title 10 control, the Governor is the commander-in-chief of its units. As commander-in-chief, the Governor can directly access and utilize the Guard's federally assigned aircraft, vehicles and other equipment so long as the federal government is reimbursed for the use of fungible equipment and supplies such as fuel, food stocks, etc. This is the authority under which the Governor activates and deploys National Guard forces in response to natural disasters. It is also the authority under which the Governor deploys National Guard forces in response to man-made emergencies such as riots and civil unrest, or terrorist attacks. The Governor can activate CalGuard personnel to State Active Duty (SAD) in response to natural or man-made disasters or Homeland Defense missions. State Active Duty is based on California statute and policy and is funded by state funds. While on SAD status, Guard members are under the command and control of the Governor, which is exercised through The Adjutant General (TAG). Another alternative is for Guard members to be mobilized onto full-time duty under Title 32, U.S. Code. Typically, this involves an internal state crisis, such as a flood or earthquake. Under Title 32, the Soldiers and Airmen are federally funded, but command and control remains with the Governor through the TAG. Title 32 activation can be effected SB 1422 (Padilla) 5 only by the President or Secretary of Defense - and requires the approval and consent of the state Governor. Because mobilization under Title 32 keeps Guard members under state control, the federal Posse Comitatus Act (PCA) is not abridged. Enacted by Congress in 1878, the PCA limits the powers of the federal government in using federal military personnel to enforce state laws. While part-time Guard personnel not infrequently find themselves activated onto some form of full-time duty, their most common duty status is Inactive Duty for Training (IADT or IDT). This is the traditional one-weekend-per-month that generated the mildly derogatory nickname "Weekend Warrior. As noted above, the CMD and the active militia include the State Military Reserve, a purely volunteer component with approximately 1,500 active members. The Governor may call/appoint members of the SMR onto State Active Duty at state expense. (The federal government has no authority over the SMR.) Along with National Guard members, SMR members are subject to state military law, when serving on state orders. Military law Federal courts-martial are conducted under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM). Congress enacted the UCMJ, the code of military criminal laws applicable to all U.S. military members serving on regular federal active duty - including National Guard members serving on federal active duty (under Title 10). The MCM contains the Rules for Courts-Martial (RCM) and Military Rules of Evidence (MRE). Under this legal framework, military members are subject to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. The UCMJ authorizes three types of courts-martial: (1) summary court-martial; (2) special court-martial; and (3) general court-martial. Depending on the severity of the alleged offense, the accused's commanding officer enjoys great discretion with SB 1422 (Padilla) 6 respect to the type of court-martial to convene. Generally, each of the courts-martial provides fundamental constitutional and procedural rights to the accused, including, but not limited to, the right to a personal representative or counsel, the opportunity to confront evidence and witnesses, and the right to have a decision reviewed by a lawyer or a court of appeals. Military members convicted by federal courts-martial may appeal for review by the U.S. Court of Appeals for the Armed Services. This independent tribunal was established within the UCMJ by act of Congress -- not by a Presidential executive order. The same constitutional principles are applicable to the CMAP. Members of the National Guard often work in uniform on statuses other than Title 10 federal active duty. When CalGuard members, who are serving on Title 32 status or State Active Duty, are accused of violating state criminal laws, their prosecution must be under state authority. California law expressly adopts the substance and procedure contained in federal military statutes, the UCMJ, MCM, RCM, and MRE insofar as they may be applicable to state military matters. During the first decade of the post-9/11 era, the increasing number of mobilizations and deployments heightened the need to maintain congruity between federal military law and state military law. This necessitated updating California military law to more closely track with the current federal military law concerning punishments. Many changes had taken place in the federal UCMJ during the previous 50 years. The punishment provisions in state law governing courts-martial in California have not been updated in 50 years, and these punishment limitations (found in Sections 456, 457, and 458 of the Military and Veterans Code) were directly traceable back to the limitations previously contained in the United States Code, Title 32, Section 327-329. This led to AB 2579 (Sharon Runner, 2006), which was sponsored by the CMD. That law allows California to use the same standards and regulations as the federal government under the Uniform Code of Military Justice (UCMJ) in the punishment for court-martial. It includes within the powers of special court martial the power to try commissioned officers and enlisted members of the SB 1422 (Padilla) 7 organized militia. AB 2579 provides for the following: 1.The state's summary court-martial punishments meet the very same federal law/UCMJ standards (i.e., up to 30 days in confinement). 2.To have the state's special court-martial scheme meet the same federal law/UCMJ standards for an active duty special court-martial (but limit confinement to up to 180 days). 3.To have the state's general court-martial punishment scheme meet the same federal law/UCMJ standards for an active duty special court-martial (i.e., up to one year confinement, but add the possibility of a dismissal (for officer cases) and a dishonorable discharge (for enlisted cases). In 2013, the CMD sponsored AB 1410 (Committee on Veterans Affairs), which codified into statute the CMD's existing practices regarding its CMAP appellate tribunal. Sexual Assault in the Military On April 15, 2014, the U.S. Department of Defense announced plans to conduct a comprehensive review of the entire military justice system. The major driver in that decision has been growing congressional concern about the significant increase in reports of military sexual assault during the past decade and the failure to respond appropriately. Critics allege that many commanders, at all levels of command, do not take the issue seriously and address the problem through the chain-of-command, as required by military law. The critics also accuse the military justice system of inconsistency and bias in managing criminal cases of sexual assault. Another complaint is that senior military officers have abused their discretion in overturning some convictions of personnel under their command. The issue exploded in Congress in 2013 when U.S. Senator Kirsten Gillibrand (D-N.Y.) proposed removing the chain of command from authority over cases involving major crimes. That particular legislative effort was blocked by a filibuster in the Senate, SB 1422 (Padilla) 8 but the Department of Defense has launched its review of the justice system, perhaps in an effort to forestall heavy-handed congressional action in the immediate future. In March 2014, the controversy was escalated by the unexpectedly light sentencing of an Army general, who escaped a prison sentence after pleading guilty to reduced charges involving a relationship with a subordinate who accused him of assaulting her. Since 2012, the CMD's leadership has placed considerable emphasis on upgrading the Sexual Assault Prevention and Response (SAPR) program. This is not solely in response to alleged incidents within the CMD, but is part of the federal defense establishment's aggressive rollout of SAPR and sexual harassment programs. The overall military community is experiencing an upward spike in reported incidents of sexual assault. The U.S. Army is in the sixth year of its "I Am Strong" sexual assault prevention campaign, under which all new soldiers are drilled on a set of 10 rules for proper sexual assault prevention-related behaviors. All members of the U.S. Air Force are required each year to have one hour of face-to-face sexual assault prevention training from a sexual assault response coordinator. These national initiatives require compliance by California's Army and Air National Guard units. The California Guard has implemented a federally mandated dual-track reporting system for military sexual assault victims. Both tracks protect the welfare of the victim, but the system now allows the victim to decide between the two options. The "restricted" track optimizes the victim's personal privacy and psychological well-being by focusing on victim support and treatment. The "unrestricted track also initiates an investigation and provides the opportunity to hold offenders accountable. Under existing CMD policy, unrestricted reports are referred to civilian prosecutorial authorities (usually a district attorney) with the appropriate local jurisdiction. If a civilian authority declines to pursue prosecution, then the CMD considers the option of prosecuting through the state's military criminal justice system. The new policies require that all supervisors report any SB 1422 (Padilla) 9 allegations of sexual assault that come to their attention. The policies also meet the federal military's mandate that Bystander Intervention Training (BIT) be provided for all military personnel and civilian supervisors of military personnel by June 30, 2013. The BIT training provides military personnel with knowledge to recognize potentially harmful situations and take action to mitigate possible harm to colleagues, who may be subjected to sexual assault. The CMD is working to ensure it has enough unit-level SARCs to meet workload requirements and Army and Air Force requirements for SAPR-related training. COMMENT 1.Committee staff comments : The author's office has been working with Committee staff and the CMD on amendments that would clarify the bill's intent and improve its effectiveness. The author is expected to present author's amendments during the hearing. a. "Sexual assault" is a generic term frequently used to refer, collectively or individually, to several discrete criminal acts defined within the Penal Code. The bill should be amended to reference the specific relevant Penal Code sections for each crime for which the civilian prosecuting authority would be assigned primary jurisdiction. Potential amendment language: "For the purposes of this section, "sexual assault" means conduct constituting any of the following crimes defined in the Penal Code: Section 243.4; Chapter 1 (commencing with Section 261) of Title 9 of Part 1 of the Penal Code; Section 286; SB 1422 (Padilla) 10 Subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288; Section 647.6. a. MilVets Code §§450 et. seq. provide that the state may prosecute members of the active militia when they commit crimes during that service. As currently written, SB 1422 applies only to alleged sexual assaults committed by members of the CalGuard. The active militia is larger than just the National Guard. To maintain internal consistency within the Code, the bill should be amended to apply to sexual assaults committed by any member of the state's active militia, when serving on state orders or Title 32 status. b. The bill establishes March 1 as the due date for the bill's mandated annual SAPR reports to the Governor and Legislature. July 1 is a better administrative fit with the CalGuard's existing SAPR reporting requirements to the U.S. National Guard Bureau. In addition, the bill should be amended to specify that the CMD's analysis of SAPR data should include trends in relation to past years and also, to the degree possible, include comparisons with SAPR data and trends from other branches and components of the U.S. Armed Forces, both active and reserve, including other states' national guards. c. The bill should be amended so that reporting on restricted cases should be limited to aggregated statistical data so that the privacy of victims is protected. d. The bill should be amended so that reporting on unrestricted cases is limited to aggregated statistical data, but should include, at a minimum, the following subcategories: SB 1422 (Padilla) 11 (1)Types of crimes (rape, etc.) (2)Types of victim (CMD military, CMD civilian, non- employee, etc.) (3)Status of investigation. (4)Status of prosecution (if applicable). (5)Status of CMD administrative action (if applicable) Related legislation : 1.AB 1410 (Comm on VA, Ch. 322, Stats. 2013) Provides clear statutory authority for the CMD's existing practices regarding its Courts-Martial Appellate Panel. 2.AB 2579 (S.Runner, Ch. 358, Stats. 2006) updates California military law in the area of punishments available for state courts-martial to make them more consistent with comparable provisions in federal military law. 3.SB 1025 (Craven, Ch. 90, Stats. 1989) adopts the federal UCMJ and Manual for Courts-Martial for the State of California's application to its active militia, including the California National Guard. POSITIONS Sponsor: Author. Support: None on file. Oppose: None on file. SB 1422 (Padilla) 12 Analysis by: Wade Cooper Teasdale SB 1422 (Padilla) 13