BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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1
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AB 1194 (Ammiano) 4
As AmendedJune 10, 2014
Hearing date: June 24, 2014
Government Code
JM:sl
VICTIMS COMPENSATION
SEX CRIMES AND DOMESTIC VIOLENCE
HISTORY
Source: Author
Prior Legislation: None Directly on Point
Support: American Civil Liberties Union; California Cure;
Californians for Safety and Justice; Equal Rights
Advocates; Legal Services for Prisoners with Children;
Women's Foundation of California
Opposition:None known
Assembly Floor Vote: No longer relevant
KEY ISSUES
SHOULD A VICTIM'S INVOLVEMENT IN THE EVENTS LEADING TO A CRIME NOT
BE A BAR TO COMPENSATION FOR A SEX OFFENSE OR DOMESTIC VIOLENCE?
SHOULD THE VICTIM'S CONVICTION OF A FELONY NOT PROHIBIT OR LIMIT
ELIGIBILITY FOR COMPENSATION FOR A SPECIFIED SEX CRIME OR DOMESTIC
VIOLENCE?
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PURPOSE
The purpose of this bill is to 1) provide that a victim who was
involved in the events leading to a crime may seek compensation
from the Victims of Crime Fund if he or she was the victim of a
specified sex offense or domestic violence; and 2) provide that
a person's conviction of a felony shall not be a bar to
compensation for a specified sex crime or domestic violence.
Existing law states that all persons who suffer losses as a
result of criminal activity shall have the right to restitution
from the perpetrators. (Cal. Const., art. I, � 28(b)(13).)
Existing law requires the court, to order a criminal defendant
to pay both a restitution fine and restitution to the victim or
victims, if any, in addition to any other penalty provided or
imposed under the law. (Pen. Code � 1202.4, subd. (a)(3).)
Existing law establishes the Victims Compensation and Government
Claims Board (VCGCB or board) to operate the California Victim
Compensation Program (CalVCP). (Gov. Code
�� 13950 et. seq.)
Existing law provides than an application for compensation shall
be filed with VCGCB in the manner determined by the board.
(Gov. Code � 13952, subd.(a).)
Existing law states that except as provided by specified
sections of the Government Code, a person shall be eligible for
compensation when all of the following requirements are met
(Gov. Code � 13955):
The person from whom compensation is being sought who is
any of the following:
o A victim;
o A derivative victim; or,
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o A person who is entitled to reimbursement for
funeral, burial or crime scene clean-up expenses
pursuant to specified sections of the Government Code.
Either of the following conditions is met:
o The crime occurred within California, whether
or not the victim is a resident of California. This
only applies when the VCGCB determines that there are
federal funds available to the state for the
compensation of crime victims; or
o Whether or not the crime occurred within the
State of California, the victim was any of the
following:
� A California resident;
� A member of the military stationed
in California; or,
� A family member living with a member
of the military stationed in California.
If compensation is being sought for a derivative victim,
the derivative victim is a resident of California, or the
resident of another state who is any of the following:
o At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of
the victim;
o At the time of the crime was living in the
household of the victim;
o At the time of the crime was a person who had
previously lived in the house of the victim for a
person of not less than two years in a relationship
substantially similar to a previously listed
relationship;
� Another family member of the victim
including, but not limited to, the victim's
fianc� or fianc�e, and who witnessed the crime;
or,
� Is the primary caretaker of a minor
victim, but was not the primary caretaker at the
time of the crime.
Existing law authorizes VCGCB to reimburse for pecuniary loss
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for the following types of losses (Gov. Code � 13957, subd.
(a)):
The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
The amount of out-patient psychiatric, psychological or
other mental health counseling-related expenses incurred by
the victim, as specified, including peer counseling
services provided by a rape crisis center;
The expenses of non-medical remedial care and treatment
rendered in accordance with a religious method of healing
recognized by state law;
Compensation equal to the loss of income or loss of
support, or both, that a victim or derivative victim incurs
as a direct result of the victim's injury or the victim's
death, subject to specified limitations;
Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
The expense of installing or increasing residential
security, not to exceed $1,000, with respect to a crime
that occurred in the victim's residence, upon verification
by law enforcement to be necessary for the personal safety
of the victim or by a mental health treatment provider to
be necessary for the emotional well-being of the victim;
The expense of renovating or retrofitting a victim's
residence or a vehicle to make them accessible or
operational, if it is medically necessary; and,
Expenses incurred in relocating, as specified, if the
expenses are determined by law enforcement to be necessary
for the personal safety or by a mental health treatment
provider to be necessary for the emotional well-being of
the victim.
Existing law limits the total award to or on behalf of each
victim to $35,000, except that this amount may be increased to
$70,000 if federal funds for that increase are available. (Gov.
Code � 13957, subd. (b).)
Existing law states that an application shall be denied if VCGCB
finds that the victim or derivative victim failed to cooperate
reasonably with law enforcement. However, in determining
whether cooperation was reasonable, VCGCB shall consider the
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victim's or derivative victim's age, physical condition, and
psychological state, cultural or linguistic barriers and
compelling
health and safety concerns. These concerns include but not
limited to, reasonable fear of retaliation or harm jeopardizing
the well-being of the victim, victim's family, derivative victim
or derivative victim's family. (Gov. Code � 13956, subd.
(b)(1).)
Existing law provides that a domestic violence claim may not be
denied solely because the victim did not make a police report.
The board shall adopt guidelines to consider and approve
domestic violence claims based on evidence other than a police
report. The evidence may include, but is not limited to,
relevant medical or mental health records, or the fact that the
victim has obtained a temporary or permanent restraining order.
(Gov. Code � 13956, subd. (b)(2).)
Existing law states that an application for a claim based on
human trafficking, as defined, of the Penal Code may not be
denied solely because no police report was made by the victim.
VCGCB shall adopt guidelines that allow the board to consider
and approve applications for assistance based on human
trafficking relying upon evidence other than a police report to
establish that a human trafficking crime, as defined, has
occurred. That evidence may include any reliable corroborating
information approved by the board, including, but not limited
to, the following (Gov. Code � 13956, subd. (b)(3)):
A Law Enforcement Agency Endorsement was issued, as
specified;
A human trafficking caseworker has attested by affidavit
that the individual was a victim of human trafficking.
Existing law provides that a victim of violent crime who has
been convicted of a felony may not receive compensation until
released from parole or probation. Victims who are not felons
have priority for compensation ahead of felons. (Gov. Code �
13956, subd. (d).)
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Existing regulations provide that a victim has the burden to
prove that a crime for which compensation may be paid occurred.
Medical or mental health records may not be sufficient to prove
the crime occurred. (2 CCR � 649.38.)
Existing regulations provide the following as concerns the
responsibility of victims to cooperate with law enforcement:
(a) A victim or derivative victim shall reasonably
cooperate with any law enforcement agency in its
investigation of the qualifying crime and the
apprehension and prosecution of any person involved in
the qualifying crime.
(b) A victim or derivative victim who knowingly and
willingly failed to reasonably cooperate with a law
enforcement agency in the investigation of the
qualifying crime and the apprehension and conviction
of any person involved in the qualifying crime is not
eligible for assistance.
(c) A victim or derivative victim who initially
cooperated with a law enforcement agency as required
by subsection (a), and was determined to be eligible
for assistance, and subsequently knowingly and
willingly failed to cooperate with a law enforcement
agency, may be found eligible for assistance only
during the period the victim or derivative victim
cooperated with a law enforcement agency. ? (e)
Cooperation with a law enforcement agency includes,
but is not limited to:
(1) reporting the qualifying crime;
(2) completely and truthfully responding to requests
for information in a timely manner;
(3) cooperating with identifying and apprehending any
person involved in the qualifying crime; and,
(4) testifying in all proceedings, including
restitution proceedings, as required. (2 CCR �
649.59.)
Existing regulations concerning proof of a domestic violence
crime for which the victim may be compensated provide:
(a) Factors that may be considered as evidence of a
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domestic violence qualifying crime include, but are
not limited to:
(1) the perpetrator was prosecuted for the qualifying
crime;
(2) the perpetrator was enrolled in a batterers'
program or its predecessor domestic violence diversion
program as a result of the qualifying crime;
(3) a report from law enforcement concluded that a
domestic violence crime was committed against the
victim;
(4) a report from a battered women's program
corroborates the allegation of domestic violence;
(5) medical records document injuries consistent with
the allegation of domestic violence;
(6) a law enforcement officer obtained an emergency
protective order under Family Code section 6250;
(7) a report from a law enforcement officer or
prosecuting attorney concluded that a crime of
domestic violence occurred;
(8) a violation of probation due to a domestic
violence qualifying crime against the victim.
(b) For the purpose of this section, "domestic
violence" shall have the same meaning as in Penal Code
section 13700(b). (2 CCR � 649.44.)
Existing law provides that the board may deny a claim in whole
or part if the claimant, or the victim of the crime for which a
derivative victims seeks compensation, was involved in the
events leading to the crime for which compensation is sought.
(Gov. Code � 13956, subd. (c).)
Existing regulations concerning the victim's involvement in the
events leading to a crime for which compensation is sought
provide:
(a) An application from a victim may be denied, in
whole or in part, because of the involvement of the
victim in the events leading to the qualifying crime.
(b) An application from a derivative victim may be
denied, in whole or in part, because of the
involvement of the victim or derivative victim in the
events leading to the qualifying crime.
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(c) Factors that may be considered when determining
whether the victim or derivative victim was involved
in the events leading to the qualifying crime include,
but are not limited to:
(1) the conduct of the victim or derivative victim
caused, resulted in, or reasonably could have led to
the qualifying crime;
(2) the conduct of the victim or derivative victim was
negligent and placed himself or herself, or another
person in a position to be injured or victimized;
(3) the victim or derivative victim intentionally
created, entered, or stayed in a situation or
environment in which it was reasonably foreseeable
that he or she would be victimized;
(4) the level of responsibility of the victim or
derivative victim for the qualifying crime;
(5) the qualifying crime was a reasonably foreseeable
consequence of the conduct of the victim or derivative
victim;
(6) the reasonable ability of the victim or derivative
victim to avoid the involvement in the events leading
to the qualifying crime;
(7) the extent of harm to the victim or derivative
victim resulting from the crime;
(8) future harm to the victim or derivative victim
that may occur if assistance is not awarded.
(d) A victim or derivative victim need not participate
in the qualifying crime or engage in conduct that is
illegal in order to be found to be involved in the
events leading to the qualifying crime.
(e) Significant weight may be given to the evidence
from and conclusions of a law enforcement agency after
investigation of the qualifying crime when determining
whether the victim or derivative victim was involved
in the events leading to the qualifying crime.
(f) Factors that shall be considered when determining
whether a minor victim or derivative victim was
involved in the events leading to a qualifying crime
under subsection (a) or (b) include, but are not
limited to:
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(1) age;
(2) physical condition;
(3) psychological or emotional condition;
(4) compelling health or personal safety factors; or,
(5) reasonable fear of retaliation or harm to self or
family.
(g) The eligibility of a minor derivative victim of a
domestic violence qualifying crime shall not be
affected by the victim's involvement in the events
leading to the domestic violence qualifying crime.
(CCR � 649.52.)
This bill provides: "No application for [victim] compensation
may be denied based upon the applicant's involvement in events
leading up to the crime if the applicant was the victim of
sexual assault or domestic violence as described in Section 261,
262, 264, 264.1, 273.5, 285, 288a, or 289 of the Penal Code."
This bill provides: Denial of a claim for victim compensation
because the victim has been convicted of a felony and not
released from parole or probation shall not apply to any victim
of sexual assault or domestic violence as described in Section
261, 262, 264, 264.1, 273.5, 288a, or 289 of the Penal Code.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
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felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
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meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
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Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. This is a new Bill as of June 10, 2014; it was previously a
Transportation-related bill
This bill was gutted and amended in the Senate Transportation
Committee on June 10, 2014. The bill had previously considered
bike lanes and traffic calming under the Safe Routes to School
program that is administered by the Department of
Transportation. The bill was re-referred to Senate Public
Safety on June 12, 2014.
2. Need for This Bill
According to the author:
California has very clear policy intent with regards to
domestic violence, sexual assault and rape: There is
never an excuse for domestic violence, sexual assault and
rape. One of the key factors in rehabilitation services is
victims' counseling, and yet the law tells felons that it
is ok for them to be raped because they have committed a
previous crime. This is bad policy. AB 1194 removes this
barrier once and for all, making clear that there is never
an excuse for domestic violence, sexual assault and rape.
Any victim of these crimes should be able to receive
reimbursement for victims' services specific to their
domestic violence, sexual assault and rape regardless of
their criminal activity or record.
3. Crimes Covered by this Bill
Involvement in the Events Leading to the charged Crime
This bill provides that a victim who was involved in the events
leading up to one of a list of specified crimes is not
prohibited from obtaining compensation from the Victims of Crime
Fund. These crimes include what is commonly described as
domestic violence - infliction of a traumatic condition on a
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specified family member, fianc�, fianc�e, cohabitant or dating
partner. (Pen. Code � 273.5.) The bill also covers numerous
sex crimes: rape, spousal rape, rape in concert, oral
copulation, penetration with a foreign or unknown object and
incest.
The inclusion of incest in this bill may be a mistake, as the
digest states that the crime is intended to apply sexual
assault. Incest is seldom charged and would not often involve
any kind of violence or coercion. The use of violence or
coercion would generally make the offense a standard sex crime,
such as rape. Perhaps the intended offense is sodomy, defined
in Penal Code Section 286. Such a crime would not be unusual in
a sexual assault.
SHOULD THE INCLUSION OF INCEST IN CRIMES FOR WHICH COMPENSATION
IS ALLOWED FOR THOSE WHO WERE INVOLVED IN THE EVENTS LEADING TO
THE OFFENSE BE REPLACED WITH CRIMES INVOLVING SODOMY?
Crimes for Which Conviction of a Felony does not Bar
Compensation
Existing laws and regulations provide that a person who has been
convicted of a felony can receive compensation only if they have
been discharged from parole or probation. This bill provides
that a person who has been convicted of a felony is eligible for
compensation if she or he has been the victim of domestic
violence or a specified sex crime.
This provision would not be terribly remarkable if the sex crime
or domestic violence victim had been convicted of a felony such
as drug possession, drug sales or forgery. However, the bill
could produce some unintended or problematic results if the sex
crime victim had also been initially a perpetrator of a listed
crime. For example, a woman could be convicted of rape or
another sex crime for aiding and abetting a rape or actively
participating in sexual penetration, but also be a victim if the
main perpetrator then turned on the woman. Perhaps the author
and the members of the committee might wish to consider an
amendment providing an exception to compensation eligibility if
the claimant was convicted of a listed felony in the same
transaction as the crime for which compensation is sought.
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This provision does not include incest as a listed crime.
However, this provision also does not include sodomy. Forced
sodomy would appear to be no less egregious an offense than
forced sexual intercourse, oral copulation or digital
penetration. In any event, the reason for not including sodomy
as a listed crime is not clear.
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4. Previous Regulations Prohibiting Compensation to Victims who
were Engaged in Prostitution at the time of the Crime for
Which Compensation is Sought
The VCGCB (board) has repealed<1> a regulation that essentially
prohibited compensation to a victim of a crime who was engaging
in prostitution at the time of the commission of the offense.
This regulation was essentially a specific application of the
more general prohibition on
compensating a person who was involved in the events leading to
the crime for which compensation is sought.
Sex worker advocates challenged the decision of the board to
deny compensation to victims who were engaged in prostitution at
the time of the offense. These advocates argued that a person
who was negotiating payment for engaging in a sex act could
still be raped or be the victim of another sex crime committed
by force or violence. Further, they noted that sex workers are
often working in isolated places where they could be at the
mercy of the perpetrator of a violent crime.
5. Basic Purpose and History of the Victims of Crime Program
The victims' compensation program in the VCGCB -board was
created in 1965, the first such program in the country<2>.
VCGCB provides compensation for victims of violent crime. It
reimburses eligible victims for many crime-related expenses.
Funding for the board comes from restitution fines and penalty
assessments paid by criminal offenders, as well as federal
matching funds.
The other core function of the board is to review claims against
the state and request payment of claims by the Legislature in
annual legislation. A person must present a claim for damages
against the state to the board before filing a lawsuit.<3>
6. VCGCB Regulations on Proof of a Domestic Violence Crime
---------------------------
<1>
http://blogs.sacbee.com/capitolalertlatest/2013/12/californias-th
ree-member-victim-compensation-and.html
<2> http://www.vcgcb.ca.gov/board/.
<3> http://www.vcgcb.ca.gov/claims/.
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The board promulgates detailed regulations to implement the
governing statutes. The regulations are generally written in
everyday English. A victim generally must prove that a crime
for which compensation is allowed occurred, and the victim must
cooperate with law enforcement.
The regulations concerning proof of domestic violence do not
explicitly provide an exception or relaxed standards for
cooperation with law enforcement. Nevertheless, the evidence
allowed to prove a domestic violence crime includes a medical
report or a report from a battered women's program, in addition
to law-enforcement related reports or documentation. As to
other crimes, regulations specifically state that medical
reports may not be sufficient to prove a crime. It can be
implied that cooperation with law enforcement for domestic
violence might not need to be of the quantity or quality
required for other claims.
Arguably, the expanded documentation required to establish
domestic violence reflects the reality that a domestic violence
perpetrator likely knows the victim's life so well as to be
particularly able to exact retribution for cooperation by the
victim with law enforcement. Further, a domestic violence
victim may need to have ongoing interaction of some kind with
the perpetrator. These could often include child custody and
care matters. This bill essentially requires consideration of
similar factors in cases where military personnel seek
compensation for sexual assault.
7. AB 2545 (Lowenthal) Sexual Assault in the Military
AB 2545 (Lowenthal) pending in Senate Appropriations,
essentially allows a member of the military to prove that he or
she was the victim of sexual assault through documentation and
other evidence very similar to that used in domestic violence
cases. Media reports and congressional proceedings have noted
the difficulties military sexual assault victims may have in
reporting and seeking justice, including reports of military
sexual assault victims being ostracized in their close-knit
communities. Military law allows a commanding officer to
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dismiss a complaint.<4> In May, 2014, a bill authored by
Senator Kirsten Gillibrand to remove authority over sexual
assault and other serious crime prosecutions from the chain of
command fell a few votes short of passage.<5>
There are some parallels between sex workers and members of the
military. All branches of the military ban sexual conduct
between officers and enlisted personnel. <6> Further, there are
specific bans for sexual conduct in certain circumstances, such
as on aircraft carriers. Under a very strict reading of the
prohibition on compensation for crimes in which the victim was
involved in events leading to the crime, it could be argued that
a prior sexual relationship that is barred by military law
constitutes involvement in the events leading to a sexual
assault committed by an officer against an enlisted person or by
one sailor against another. However, differences in authority
or differences in physical strength could make many military
sexual relationships or incidents coercive.<7>
***************
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<4>
http://www.npr.org/2014/03/06/286886153/senate-blocks-military-se
xual-assault-reforms.
<5>
http://www.nytimes.com/2014/05/02/us/military-sex-assault-report.
html.
<6> http://www.defense.gov/specials/fraternization/
<7>
http://www.navytimes.com/article/20130129/NEWS/301290310/Lawmaker
-Ban-sex-between-recruits-instructors