By Michael Gardner via U-T San Diego, May 9, 2014
SACRAMENTO — California appears poised to pass first-in-the-nation legislation that would require the National Guard to turn sexual assault cases over to civilian prosecutors — a move meant to push the Pentagon and other states to become more aggressive in pursuing justice for victims.
“While Washington debates how to address the crisis, California can lead by example,” said Sen. Alex Padilla, a Pacoima Democrat carrying the measure.
His legislation would codify in law what’s already established policy within the National Guard and other smaller units formed under the California Military Department. That would prevent the military from later changing directions without legislative permission.
The reach of the legislation applies only to the California Military Department, of which the state’s National Guard is the largest branch. Supporters hope its passage will lead to similar steps being taken in other states and, eventually, encourage the Department of Defense to establish stronger protocols governing investigations and toughen penalties.
“It’s a warning to Congress that they need to get this done,” said Reid Milburn, a U.S. Air Force veteran intent on seeing the California measure signed into law.
Congress and the Pentagon have been acting under pressure.
Congress last year extended more rights to victims in new directives tucked into the annual defense authorization bill. Those strip commanders of their power to overturn jury convictions, protect victims from retaliation and require a dishonorable discharge for those convicted. Further reforms passed the U.S. Senate this year.
But the Pentagon recently has beaten back legislative proposals before the full Senate and in the House Armed Services Committee that would have taken away a commander’s option of pursuing prosecution and turn that authority over to military lawyers.
Military officials are adamantly opposed to relinquishing that authority. The power to punish or pardon is a tenet of military law rooted in the conviction that commanders must have the ability to discipline the troops they lead. Undercutting that role, top Defense Department officials warned, would send a message that there is lack of faith in the officer corps, thereby undermining the armed forces.
Also, the Pentagon recently revealed that sexual assault reports rose 50 percent in 2013 but largely attributed that to more confidence by victims that they will be treated fairly and their cases will be pursued. Nevertheless, critics say prosecutions and convictions are lagging. Last month, the Department of Defense announced it would launch a comprehensive review of the entire military justice system. The Pentagon has been under growing pressure to act after a number of reports of indifference, commanders overruling convictions and victims being punished with menial tasks or transfers to unwanted posts.
The California legislation, coupled later with stronger protections at the national level, would further “reassure survivors,” Milburn said. She is a member of the Veterans Caucus of the California Democratic Party, which has made addressing sexual assault one of its top priorities in the state and nation.
“In the past, they might have decided not to report if they had known there would be repercussions. This gives them protection from the good-old-boys club,” she said.
Since 2011, there have been 43 reports of sexual assault, ranging from unwanted touching to rape, within the California Military Department units, according to the department. Some of those stem from incidents that occurred in previous years.
The department has not taken a position on the legislation, but has been working with Padilla and his supporters to craft the language. Milburn and others say the department has been cooperative. The department is prohibited by law from discussing in detail reported sexual assaults.
Lawson Stuart, chairman of the veterans caucus, said once California takes the lead it will prompt other states to follow.
“Why are they trying to block justice for those who are protecting us?” said Lawson, who also served in the U.S. Air Force.
Lawson said the caucus is reviewing related steps to take in the future. Among those: require the military to keep evidence even if the victim chooses not to file charges in case there is a change of heart after leaving the service.
The California Military Department is made up of the National Guard, the state Military Reserve, the office of the Adjutant General and the California Cadet Corps. It’s an all-volunteer force.
Under its policies, a victim has a choice of filing what are called “restricted” or “unrestricted” reports. A restricted report allows a victim to obtain medical treatment and other assistance without notifying law enforcement. By filing an unrestricted report, the incident is sent to the chain of command, a sexual assault coordinator and to police.
The two options were adopted to encourage reporting and “therefore increase the number of victims that receive the help they need to recover and heal,” according to an email from the military department. A victim advocate is assigned to each case regardless of status.
The department said since 2011, 36 of the 43 cases were filed as unrestricted — meaning they were sent to commanders and police to investigate. The outcome of those cases was not available.
The state legislation earlier received unanimous support in the Senate Veterans Affairs Committee. The Appropriations Committee is expected to take it up Monday.
Among its provisions, Senate Bill 1422 would erase the statute of limitations on filing sexual assault claims. If civilian authorities choose not to prosecute, the military could still proceed with a court martial under the bill.
The California District Attorneys Association has not taken a position on Senate Bill 1422. San Diego County District Attorney Bonnie Dumanis did not respond to a request for comment.
No opposition has emerged.
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