BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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."

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          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  

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            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  

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          "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.


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          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).


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          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  

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          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

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          AL:e  5/13/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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