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