BILL ANALYSIS �
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.
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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
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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.
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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
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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
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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
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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,
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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
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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;
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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:
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(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.
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Analysis by: Wade Cooper Teasdale
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