Article Source: CA State Senator Jerry Hill
SB 1274 Closes Legal Loophole That Thwarts Prosecution of State Military Members Accused of Sexual Assault, Sexual Harassment and Reprisals Against Whistleblowers
SACRAMENTO—State Senator Jerry Hill has introduced legislation to remove a legal obstacle that hinders efforts to hold members of the California military accountable in cases of alleged sexual assault, sexual harassment and reprisals against whistleblowers.
“This is a matter of justice. These crimes must be properly investigated and prosecuted, and it is essential to empower survivors, not silence them,” said Senator Hill, D-San Mateo and Santa Clara Counties. “Our basic tenets of justice do not change because the survivors and alleged perpetrators are our servicemembers. A loophole in the law jeopardizes those principles.”
Senator Hill introduced Senate Bill 1274 on Friday joined by Senator Thomas J. Umberg, D-Santa Ana, as a co-author. Both lawmakers have been servicemembers. Senator Hill was a staff sergeant in the California Army National Guard from 1966 to 1972. Senator Umberg is retired U.S. Army colonel.
Recent reforms in state law sought to ensure unbiased investigation and prosecution of sexual assault allegations involving members of the California National Guard, the State Military Reserve and the Naval Militia by requiring that local civilian prosecutors handle such cases. The changes removed the cases from the jurisdiction of the National Guard and the California Military Department, which oversees the Guard and the other branches of the state militia. Further legal safeguards also were added to whistleblower protections.
But advocates for survivors of sexual assault and harassment say more needs to be done to give the measures their full force: The law must explicitly state that such criminal acts are not part of military duty.
“Existing law is archaic and harmful to those who wear a uniform and especially those who need a voice after suffering sexual harassment or trauma. These acts are indefensible, harmful, and toxic to our military institutions,” said retired U.S. Army Brigadier General Robin Umberg, the spouse of Senator Umberg. “It is past time for the federal government to take action,” she said. “With this bill, California as a state will lead the way in doing the right thing for our women and men in uniform.”
For members of the California military in active service, “current law is a shield against prosecution for criminal activity,” said retired Army Colonel John N. Haramalis, legislative director for the National Guard Association of California. “They cannot be held criminally or civilly liable for any illegal actions they take against any person – not just those in uniform – ‘in performance of their duties.’ That is completely unacceptable.”
The Loophole in the Law
The provision of law at issue reads: “Members of the militia in the active service of the State shall not be liable civilly or criminally for any act or acts done by them in the performance of their duty.”
SB 1274 would add this sentence: “An act or acts of sexual harassment, sexual assault, reprisals in violation of Sections 56 and 56.1 [whistleblower protection laws], and felony criminal offenses shall be deemed not to be done in the performance of a member’s duties.” The bill builds on legislation passed by then-Senator Alex Padilla in 2014, SB 1422, which gave civilian authorities responsibility for investigating and prosecuting California military sexual assault cases, and on Senator Umberg’s SB 481 of 2019, which strengthened whistleblower protections.
“The National Guard Association of California thanks Senator Hill for his support of our men and women serving in uniform and for undertaking this vital piece of legislation,” said Haramalis. “While we believe this bill only states what should be obvious, it is important that we leave no law in place that could encourage anyone to commit these offenses against our troops or any person in the state of California.”
The Problem Nationwide
Nationwide, sexual assault in the military continues to rise despite more than a decade of policy directives, legislative efforts, and work to bolster sexual assault prevention and response programs. The latest U.S. Department of Defense report on sexual assault in the military showed a surge in “unwanted sexual contact” over a two-year period with an estimated 20,500 instances involving 13,000 women and 7,500 men occurring in 2018, a 38 percent increase in the number of incidents reported in 2016. The report also said just one in three sexual assault survivors in the military reported their incident to Department of Defense authorities.
When the report was released last spring, Congresswoman Jackie Speier and other advocates for change pointed to the figures as evidence of the need for further reform.
Congresswoman Speier, the Peninsula Democrat who chairs the House Armed Services Military Personnel Subcommittee, has worked for years to address military sexual assault issues. Her work has included efforts to change the way case law known as the Feres doctrine is applied. The 70-year-old U.S. Supreme Court decision has been broadly applied to prevent lawsuits against the government over injuries sustained by military members during active service in situations that range from negligence resulting in a fatality to rape by another servicemember.
How SB 1274 Can Help
“Time and again, the Feres doctrine has discouraged accountability and encouraged a culture of secrecy, enabling problems to fester and rot. That’s why I passed legislation last year to give servicemembers the ability to file claims and receive compensation for medical malpractice they suffer for noncombat-related injuries at DOD facilities,” said Congresswoman Speier. “Servicemembers must also have the right to sue for other forms of negligence. I applaud this state bill’s efforts to give them that right and will continue to fight for solutions at the federal level, where they will have the greatest impact.”
Dwight Stirling, CEO of the Center for Law and Military Policy, also supports SB 1274 as a means of easing restrictions imposed by the Feres doctrine. “It is vitally important that we empower survivors of military sexual assault to hold their assailants to account in civil court,” said Stirling, who also is a longtime prosecutor for the California National Guard. “Rapists in uniform have been able to hide behind the chain of command for far too long. The only way to end the epidemic is to allow survivors to take control of the process by seeking damages against their perpetrators in an independent court of law. It is unconscionable that while prison inmates are able to sue for sexual assault, service members are prohibited by law from doing so.”