BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1422| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 1422 Author: Padilla (D), et al. Amended: 4/30/14 Vote: 21 SENATE VETERANS AFFAIRS COMMITTEE : 6-0, 4/22/14 AYES: Hueso, Block, Correa, Lieu, Nielsen, Roth NO VOTE RECORDED: Knight, Vacancy SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 SUBJECT : Military courts: sexual assault: courts-martial SOURCE : Author DIGEST : This bill requires the California Military Department (CMD), on or before July 1 of each year, to report prescribed information to the Governor, the Legislature, the Senate Committee on Veterans Affairs, and the Assembly Committee on Veterans Affairs, regarding the federal government's activities relating to sexual assault prevention and response. ANALYSIS : Existing law: 1.Establishes as crimes in the Penal Code, various acts, which often are referred to under the general term of "sexual assault." CONTINUED SB 1422 Page 2 2.Provides that the military courts of this state are comprised of general courts-martial, special courts-martial, summary courts-martial, and courts of inquiry. 3.Establishes the Courts-Martial Appellate Panel (CMAP) - CMD's appellate tribunal. 4.Provides that general, special, and summary courts-martial have the power to try and adjudge specified members of the active militia. 5.Establishes CMD, which includes the office of the Adjutant General, the California National Guard (CNG), 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: 1.Requires CMD, on or before July 1 of each year, to report prescribed information to the Governor, the Legislature, the Senate Committee on Veterans Affairs, and the Assembly Committee on Veterans Affairs, regarding the federal government's activities relating to sexual assault prevention and response. 2.Specifies the requirements of the CMD report. 3.Restricts the authority of CMD or the CNG to assert jurisdiction over cases of sexual assault, or an attempt of that offense, by a member of the CNG active militia when performing military duty under federal law or while on state duty orders, to occasions when a civilian prosecutorial authority refuses to prosecute on behalf of the state. This bill also requires a member of the active militia recommended for court-martial pursuant to a specified hearing for sexual assault, or an attempt of that offense, to be tried by general court-martial. 4.Prohibits a convening authority from overturning a conviction of sexual assault handed down by a general court-martial. Under this bill, no statute of limitations applies to cases CONTINUED SB 1422 Page 3 subject to the jurisdiction of the military court, and this bill requires 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. 5.Defines "sexual assault" to include specific crimes. Background California State Militia . The Military and Veterans (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. 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. 3.All able-bodied males between 18 and 45 years old who are not members of CMD constitute the unorganized militia of the state. 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. CMD . CMD is located within the executive branch. According to the MilVets Code, CMD is comprised of the following: 1.The three components of the active militia: (a) the National Guard, (b) the State Military Reserve, and (c) the Naval Militia. 2.Two additional elements: (a) The office of the Adjutant General and (b) the California Cadet Corps. CMD's 24,000-person roster is dominated by its largest component, the CNG. The CNG is the largest of the 54 CONTINUED SB 1422 Page 4 "state-level" National Guards located in U.S. states and territories. The CNG 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 U.S. Army Reserve, and the full-time Active Component to form the total U.S. Army. Similarly, the ANG joins with its sister reserve component, the purely federal U.S. Air Force Reserve and the branch's Active Component to form the total U.S. Air Force. 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 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. CONTINUED SB 1422 Page 5 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 CNG 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 MilVets 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, Chapter 358, Statutes of 2006), which was sponsored by CMD. That law allows California to use the same standards and regulations as the federal government under the 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 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). CONTINUED SB 1422 Page 6 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, CMD sponsored AB 1410 (Committee on Veterans Affairs, Chapter 322), which codified into statute 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, 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, CMD's leadership has placed considerable emphasis on upgrading the SAPR program. This is not solely in response to CONTINUED SB 1422 Page 7 alleged incidents within 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 CNG 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 CMD considers the option of prosecuting through the state's military criminal justice system. The new policies require that all supervisors report any 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 5/13/14) Veterans Caucus of the California Democratic Party CONTINUED SB 1422 Page 8 AL:e 5/13/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED