BILL ANALYSIS �
SB 1422
Page 1
Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Sharon Quirk-Silva, Chair
SB 1422 (Padilla) - As Amended: June 10, 2014
SENATE VOTE : 34-0
SUBJECT : Military courts: sexual assault: courts-martial
SUMMARY : Requires reporting as specified. Restricts authority
of California Military Department (Department) in specified
sexual assault prosecutions. Specifically, this bill :
1)Requires the Department to annually report the following
information to the Governor, the Legislature, the Senate
Committee on Veterans Affairs, the Assembly Committee on
Veterans Affairs, the Attorney General, and the United States
Attorneys in California:
a) For the previous federal fiscal year:
i) The policies, procedures, and processes in place or
implemented by the Sexual Assault Prevention and Response
(SAPR) Program during that federal fiscal year in
response to incidents of sexual assault.
ii) An assessment of the implementation of the policies
and procedures on the prevention, response, and oversight
of sexual assaults in the military to determine the
effectiveness of SAPR policies and programs, including an
assessment of how service efforts executed federal
Department of Defense SAPR priorities.
iii) Matrices for restricted and unrestricted reports of
the number of sexual assaults involving service members,
that includes case synopses, and disciplinary actions
taken in substantiated cases and relevant information.
Reporting on restricted cases shall be limited to
aggregated statistical data so that the privacy of
victims is protected. Reporting on unrestricted cases
shall be limited to aggregated statistical data, but
shall include, at a minimum, the following subcategories:
(1) Types of crimes.
(2) Types of victims.
(3) Status of investigations.
(4) Status of prosecutions.
(5) Status of department administrative actions.
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iv) Analyses of the matrices of the number of sexual
assaults involving service members. The analyses shall
include analysis of data and trends in comparison to
state data from previous years and, to the degree
possible, comparisons of state data and trends and data
and trends from other branches and components of the
United States Armed Forces, including both active and
reserve components, including the National Guard of other
states and territories.
b) For the current federal fiscal year, any plans for the
prevention of and response to sexual assault, specifically
in the areas of advocacy, healthcare provider and medical
response, mental health, counseling, investigative
services, legal services, and chaplain response.
2)Mandates that a member of the active militia who, when
performing military duty under Title 32 of the United States
Code or while on state orders, violates a provision of the
Penal Code for sexual assault, or an attempt of that offense,
shall be prosecuted by the office of the district attorney or
other equivalent civilian prosecutorial authority with
appropriate jurisdiction. The Military Department or
California National Guard may claim jurisdiction only under
the Uniformed Code of Military Justice (UCMJ) as incorporated
by this code, if the district attorney, or other equivalent
civilian prosecutorial authority, refuses to pursue a criminal
prosecution of that member.
3)Subject to subdivision (a), a member of the active militia
recommended for court-martial pursuant to an Article 32
hearing (10 U.S.C. Sec. 832), as authorized by the UCMJ as
incorporated by this code, for sexual assault, or an attempt
of that offense, shall be tried by general court-martial.
a) Notwithstanding any other provision of the UCMJ as
incorporated by this code, a convening authority in the
California National Guard or in the Military Department, as
authorized by the UCMJ as incorporated by this code, shall
not overturn a sexual assault conviction issued by a
general court-martial.
b) A member of the active militia who is found guilty of
sexual assault, or an attempt of that offense shall be
punished as the general court-martial may direct, subject
to Section 456, and shall include, at a minimum, dismissal
or dishonorable discharge.
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c) There is no statute of limitations for a member of the
active militia to be charged with rape or sexual assault
when tried and punished by a general court-martial as
provided in this section.
d) As used in this section, "sexual assault" means conduct
constituting any of the crimes defined in the following
provisions of the Penal Code:
(1) Section 243.4 of the Penal Code.
(2) Chapter 1 (commencing with Section 261) of
Title 9 of Part 1 of the Penal Code.
(3) Section 286 of the Penal Code.
(4) Subdivision (a) or (b), or paragraph (1) of
subdivision (c), of Section 288 of the Penal Code.
(5) Section 647.6 of the Penal Code.
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 Department which includes the California
National Guard, can prosecute member Soldiers and Airmen under
state authority for violations of state criminal law.
3)Establishes Departmental courts-martial - including summary,
special and general - with increasing levels of jurisdiction
and punishment authority.
4)Establishes the Courts-Martial Appellate Panel (CMAP) - the
Department's appellate tribunal.
5)Incorporates into the Department's judicial and disciplinary
regulations, insofar as is appropriate, the standards and
procedures authorized by federal statute in the UCMJ employed
by the U.S. Armed Forces.
FISCAL EFFECT : Unknown at this time.
COMMENTS : 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
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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.
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
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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
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 Department sponsored AB 1410 (Committee on Veterans
Affairs), which codified into statute the Department'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
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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 Department 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 Department, 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 Department 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 Department 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
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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 Department is working to ensure it has enough unit-level
SARCs to meet workload requirements and Army and Air Force
requirements for SAPR-related training.
This bill essentially codifies the existing practice of the
Department. The Department, while it has some law enforcement
and special victim prosecutor capabilities, recognizes that
civilian authorities, regrettably, have seasoned investigators
and prosecutors in the area of sexual assault. The Guard,
unlike its active duty and even reserve sister components, also
lacks much of the infrastructure those other components have.
This bill also addresses some of the concerns which have been
the subject of the Gillibrand bill and of media scrutiny.
REGISTERED SUPPORT / OPPOSITION :
Support
None at this time.
Opposition
None at this time.
Analysis Prepared by : John J. Spangler / V. A. / (916)
319-3550