BILL ANALYSIS �
-----------------------------------------------------------------
|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