BILL ANALYSIS �
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UNFINISHED BUSINESS
Bill No: SB 1422
Author: Padilla (D), et al.
Amended: 6/10/14
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
SENATE FLOOR : 34-0, 5/19/14
AYES: Anderson, Beall, Berryhill, Block, Corbett, Correa, De
Le�n, Evans, Fuller, Gaines, Galgiani, Hancock, Hernandez,
Hill, Hueso, Huff, Jackson, Knight, Lara, Leno, Lieu, Liu,
Mitchell, Monning, Morrell, Padilla, Pavley, Roth, Steinberg,
Torres, Vidak, Walters, Wolk, Wyland
NO VOTE RECORDED: Calderon, Cannella, DeSaulnier, Nielsen,
Wright, Yee
ASSEMBLY FLOOR : 77-0, 8/7/14 (Consent) - See last page for vote
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
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Veterans Affairs, the Attorney General, and the United States
Attorneys in California, regarding the federal government's
activities relating to sexual assault prevention and response.
The bill restricts the authority of the CMD or the California
National Guard (CNG) to assert jurisdiction over assault
offenses, by a member of the active militia when subject to the
Uniform Code of Military Justice (UCMJ) under specified
circumstances, and requires a member of the active militia
recommended for court-martial pursuant to a specified hearing
for a qualifying sexual assault offense, or an attempt of that
offense, to be tried by general court-martial. The bill also
prohibits a convening authority from overturning a conviction of
a qualifying sexual assault offense issued by a general
court-martial and requires the convening authority to dispose of
cases on appeal in accordance with the decision of the
Courts-Martial Appellate Panel (CMAP).
Assembly Amendments expand reporting requirements for the CMD,
require the convening authority to dispose of cases on appeal in
accordance with the decision of the CMAP, defines "qualifying
sexual assault offense" and make minor changes.
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."
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 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 CNG, the State Military Reserve, the California
Cadet Corps, and the Naval Militia. (Federal laws and
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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, the Attorney General, and the
United States Attorneys in California, 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 qualifying sexual assault offenses, as
defined, by a member of the CNG active militia when, subject
to the UCMJ, 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 a qualifying sexual assault offense issued by a general
court-martial. This bill requires the convening authority to
dispose of cases on appeal in accordance with the decision of
the CMAP. Under this bill, no statute of limitations applies
to cases 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 crime" to include specific offenses
under existing law.
Background
California State Militia . The Military and Veterans (MilVets)
Code provides for a California state militia, which contains
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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
"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.
Military law . Federal courts-martial are conducted under the
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 -
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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 provide 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 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
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have not been updated in 50 years, and these punishment
limitations were directly traceable back to the limitations
previously contained in the United States Code, Title 32,
Sections 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).
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
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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 Sexual Assault Prevention and Response (SAPR)
program. This is not solely in response to 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
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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 8/8/14)
Veterans Caucus of the California Democratic Party
Veterans United for Truth, Inc.
ASSEMBLY FLOOR : 77-0, 8/7/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Ch�vez, Chesbro, Conway, Cooley, Dababneh,
Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Frazier, Beth
Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,
Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Holden, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Mansoor, Medina, Melendez, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, John A. P�rez, V.
Manuel P�rez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas,
Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron,
Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Bonilla, Fox, Vacancy
AL:e 8/8/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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