Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB177 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 177
5	5	April 20, 2023 - Introduced by JOINT LEGISLATIVE COUNCIL. Referred to Committee
6	6	on Veterans and Military Affairs.
7	7	*AUTHORS SUBJECT TO CHANGE*
8	8	AN ACT to repeal 322.001 (16) and 322.120 (1) (a); to renumber and amend
9	9	322.120 (3) (b); to amend 322.001 (15), 322.036, 322.056 (2), 322.056 (5),
10	10	322.120 (3) (a) (intro.) and 322.133; and to create 321.04 (1) (s), 321.04 (1) (t),
11	11	322.0935, 322.120 (3) (b) 1., 322.1325 and 322.1345 of the statutes; relating to:
12	12	punitive articles in the Wisconsin Code of Military Justice prohibiting certain
13	13	activities; procedures applicable to courts-martial cases under the Wisconsin
14	14	Code of Military Justice; treatment of victims of an offense under the Wisconsin
15	15	Code of Military Justice; defining military offenses under the Wisconsin Code
16	16	of Military Justice; punishments for violations of the Wisconsin Code of
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27	27	ASSEMBLY BILL 177
28	28	Military Justice; and the removal of gender-specific language from the
29	29	Wisconsin Code of Military Justice.
30	30	Analysis by the Legislative Reference Bureau
31	31	This bill is explained in the NOTES provided by the Joint Legislative Council in
32	32	the bill.
33	33	The people of the state of Wisconsin, represented in senate and assembly, do
34	34	enact as follows:
35	35	JOINT LEGISLATIVE COUNCIL PREFATORY NOTE: This bill was prepared for the Joint
36	36	Legislative Council Study Committee on Wisconsin National Guard Sexual Misconduct
37	37	Procedures. Under current law, members of the Wisconsin National Guard on state status
38	38	are subject to the Wisconsin Code of Military Justice (WCMJ), which codifies offenses that
39	39	may be punished under the code and establishes procedures for enforcing the code. If on
40	40	federal status, National Guard members are subject instead to the federal Uniform Code
41	41	of Military Justice (UCMJ).
42	42	The bill makes a number of changes to the WCMJ. Specifically, the bill clarifies the
43	43	offenses over which courts-martial have primary jurisdiction; specifies the limits of
44	44	punishment under the WCMJ; directs the Adjutant General to prescribe rules of
45	45	procedure for courts-martial arising under the WCMJ; codifies offenses related to
46	46	retaliation, sexual harassment, and engaging in prohibited sexual activity with a recruit
47	47	or trainee to reflect the inclusion of those offenses in the UCMJ; modifies the elements
48	48	of sexual assault to reflect changes to the elements of that offense under the UCMJ; and
49	49	removes certain gender-specific language from the WCMJ. The bill also requires the
50	50	Adjutant General to prescribe and implement a policy that ensures that any victim of an
51	51	offense under the WCMJ is treated with dignity, respect, courtesy, sensitivity, and
52	52	fairness.
53	53	Jurisdiction of Courts-Martial
54	54	Under the WCMJ, courts-martial have primary jurisdiction of military offenses,
55	55	while civilian criminal courts have primary jurisdiction of nonmilitary offenses when an
56	56	act or omission violates both the WCMJ and civilian criminal law. When a civilian court
57	57	has primary jurisdiction over an offense, the National Guard may initiate a court-martial
58	58	proceeding only after the civilian authority has declined to prosecute or dismissed the
59	59	charge, provided that jeopardy has not attached. The National Guard may, however, take
60	60	administrative disciplinary actions against a person for violating an offense over which
61	61	a civilian court has primary jurisdiction regardless of whether the civilian authority
62	62	prosecutes the offense.
63	63	The WCMJ defines “military offense” by enumerating the offenses that satisfy this
64	64	definition. It defines “nonmilitary offenses” as offenses that are in the state's civilian
65	65	penal statute and are not offenses under the WCMJ. Under current law, the definition
66	66	of “military offense” includes several offenses that are offenses under both the WCMJ and
67	67	civilian criminal law, which appears to give courts-martial, rather than civilian criminal
68	68	courts, primary jurisdiction over those offenses. The bill clarifies that civilian authorities
69	69	have primary jurisdiction over the offenses of rape and sexual assault; stalking; rape and
70	70	sexual assault of a child; sexual misconduct; larceny and wrongful appropriation;
71	71	robbery; forgery; maiming; arson; extortion; assault; burglary; housebreaking; and
72	72	perjury.
73	73	Rules of Procedure
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79	79	Under current law, the Governor may prescribe pretrial, trial, and post-trial
80	80	procedures, including modes of proof, for courts-martial cases arising under the WCMJ.
81	81	These procedures shall apply the principles of law and the rules of evidence generally
82	82	recognized in military criminal cases in the courts of the armed forces but which may not
83	83	be contrary to or inconsistent with the WCMJ. The bill modifies this provision to require
84	84	the Adjutant General to prescribe pretrial, trial, and post-trial procedures for
85	85	courts-martial cases arising under the WCMJ in writing and make these procedures
86	86	publicly available on the department's website.
87	87	Limits of Punishment
88	88	Under current law, the limits of punishment for violating an offense under the
89	89	WCMJ shall be prescribed by the Governor, but may not exceed ten years of confinement
90	90	or constitute cruel or unusual punishment. This bill adopts, by incorporation, the limits
91	91	of punishment under the UCMJ, unless the Governor prescribes other limits. These
92	92	limits still may not exceed ten years of confinement or constitute cruel or unusual
93	93	punishment.
94	94	Prohibited Activities with a Military Recruit or Trainee by a Person in a Position of Trust
95	95	The bill creates a punitive article that prohibits an officer, noncommissioned
96	96	officer, or petty officer who is in a training leadership position from engaging in a
97	97	prohibited sexual activity with a specially protected junior member of the armed forces.
98	98	It also prohibits a military recruiter from engaging in prohibited sexual activity with an
99	99	applicant for military service or a specially protected junior member of the state military
100	100	forces who is enlisted under a delayed entry program. This article parallels an article
101	101	incorporated into the UCMJ.
102	102	Under the bill, prohibited sexual activity means any sexual act or sexual contact
103	103	or any attempt or solicitation to commit a sexual act or sexual contact. A specially
104	104	protected junior member of the armed forces is a member of the state military forces who
105	105	is of the following: (1) assigned to or awaiting assignment to basic training or other initial
106	106	active duty for training; (2) a cadet, midshipman, an officer candidate, or student in any
107	107	other officer qualification program; or (3) in any program that, by regulation of the
108	108	secretary of the army or air force, is identified as a training program for initial career
109	109	qualification. Consent is not a defense for any conduct at issue.
110	110	Sexual Assault
111	111	The bill prohibits committing a nonconsensual sexual act or sexual contact against
112	112	another person and makes changes to the elements of sexual assault to match recent
113	113	changes to the UCMJ.
114	114	Under current law, a person is guilty of sexual assault under the WCMJ if he or she
115	115	commits a sexual act upon another person under a variety of different types of
116	116	circumstances. One way the elements of sexual assault are satisfied under the WCMJ is
117	117	if a person commits a sexual assault upon another person without the other person's
118	118	consent by doing any of the following: (a) threatening or placing that other person in fear;
119	119	(b) causing bodily harm to that other person; (c) making a fraudulent representation that
120	120	the sexual act serves a professional purpose; or (d) inducing a belief by any artifice,
121	121	pretense, or concealment that the person is another person. Another way the elements
122	122	of sexual assault are satisfied is if a person commits a sexual act upon another person
123	123	when the person knows or reasonably should know that the other person is asleep,
124	124	unconscious, or otherwise unaware that the sexual act is occurring. A third way the
125	125	elements of sexual assault are satisfied is if a person commits a sexual act upon another
126	126	person who is incapable of consenting for various specified reasons.
127	127	The bill modifies the elements of sexual assault under the WCMJ to align with the
128	128	elements of the offense under the UCMJ. Specifically, with respect to a sexual assault that
129	129	occurs when a person commits a sexual act upon another person by doing certain
130	130	enumerated acts, such as by threatening or placing the other person in fear, the bill
131	131	removes the issue of consent from the offense and removes from the list of other actions
132	132	“causing bodily harm to that other person,” consistent with the UCMJ. The bill also - 4 -2023 - 2024 Legislature LRB-0834/1
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135	135	provides that, as under the UCMJ, a person is guilty of sexual assault if he or she commits
136	136	a sexual act upon another person without the consent of the other person.
137	137	Under current law, a person who commits or causes sexual contact on another
138	138	person, under circumstances that would violate the offense of sexual assault had the
139	139	contact instead been a sexual act, is guilty of abusive sexual contact under the WCMJ.
140	140	The changes the bill makes to the elements of sexual assault, therefore, also apply to the
141	141	offense of abusive sexual contact.
142	142	Retaliation
143	143	The bill prohibits wrongfully taking or threatening to take an adverse personnel
144	144	action against any person or wrongfully withholding or threatening to withhold a
145	145	favorable personnel action with respect to any person, if done with intent to do any of the
146	146	following: (1) retaliate against any person for reporting or planning to report a criminal
147	147	or military offense; (2) retaliate against any person for making or planning to make a
148	148	protected communication; or (3) discourage any person from reporting a criminal or
149	149	military offense or making a protected communication.
150	150	Under the bill, a communication qualifies as a protected communication under two
151	151	circumstances. The first is if it is a lawful communication to a member of Congress,
152	152	member of the Wisconsin Legislature, the Governor, or an inspector general. The second
153	153	is if it satisfies both of the following conditions: (1) the communication is to a member of
154	154	the U.S. Department of Defense, a member of the National Guard Bureau, a law
155	155	enforcement officer, a state agency, a legislative service agency, a person in the chain of
156	156	command, or a court-martial proceeding; and (2) in the communication a member of the
157	157	state military forces complains of, or discloses evidence that, the person reasonably
158	158	believes constitutes evidence of, a violation of a law or regulation, gross mismanagement,
159	159	a gross waste of funds, an abuse of authority, or a substantial and specific danger to public
160	160	health or safety.
161	161	Sexual Harassment
162	162	The bill creates a punitive article in the WCMJ that prohibits sexual harassment
163	163	and parallels an article recently incorporated into the UCMJ. Under the bill, any person
164	164	who either knowingly makes an unwelcome sexual advance, demand, or request for a
165	165	sexual favor or knowingly engages in other unwelcome conduct of a sexual nature is
166	166	guilty of sexual harassment, if the conduct meets two conditions.
167	167	First, the sexual advance, demand, request, or conduct of a sexual nature must do
168	168	either of the following:
169	169	(a) Under the circumstances, cause a reasonable person to believe, and actually
170	170	cause at least one person to believe, that submission to or rejection would be made, either
171	171	explicitly or implicitly, a term or condition of that person's job, pay, career, benefits, or
172	172	entitlements or would be used as a basis for decisions affecting that person's job, pay,
173	173	career, benefits, or entitlements.
174	174	(b) Be so severe, repetitive, or pervasive that a reasonable person would perceive,
175	175	and at least one person actually perceived, an intimidating, hostile, or offensive working
176	176	environment.
177	177	Second, the sexual advance, demand, request, or conduct of a sexual nature must
178	178	be to the prejudice of good order and discipline in the state military forces or of a nature
179	179	to bring discredit upon the state military forces, or both.
180	180	Conduct Unbecoming an Officer
181	181	Article 133 of the WCMJ prohibits any commissioned officer, cadet, candidate, or
182	182	midshipman from engaging in conduct unbecoming of an officer and a gentleman. The bill
183	183	removes the language referring to “and a gentleman” to parallel a similar modification
184	184	to the UCMJ to remove gender-specific language.
185	185	Policy on Treatment of Victims
186	186	The Wisconsin Constitution and Wisconsin Statutes grant crime victims a variety
187	187	of rights, including the right to be treated with dignity, respect, courtesy, sensitivity, and
188	188	fairness. For these purposes, “crime victim” is defined, generally, as a person against - 5 -2023 - 2024 Legislature
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192	192	whom a crime has been committed. A victim of an offense under the WCMJ may satisfy
193	193	this definition of crime victim under some, but not all, circumstances.
194	194	The bill requires the Adjutant General to prescribe in writing, publish on the
195	195	department's website, and implement a policy that ensures that any victim of an offense
196	196	under the WCMJ is treated with dignity, respect, courtesy, sensitivity, and fairness.
197	197	SECTION 1. 321.04 (1) (s) of the statutes is created to read:
198	198	321.04 (1) (s) Prescribe in writing and make publicly available on the
199	199	department's website the procedures required under s. 322.036.
200	200	SECTION 2. 321.04 (1) (t) of the statutes is created to read:
201	201	321.04 (1) (t) Prescribe in writing, make publicly available on the department's
202	202	website, and implement a policy that ensures that any victim of an offense under the
203	203	Wisconsin code of military justice is treated with dignity, respect, courtesy,
204	204	sensitivity, and fairness.
205	205	SECTION 3. 322.001 (15) of the statutes is amended to read:
206	206	322.001 (15) “Military offenses" means those offenses prescribed under articles
207	207	77, principals; 78, accessory after the fact; 80, attempts; 81, conspiracy; 82,
208	208	solicitation; 83, fraudulent enlistment, appointment, or separation; 84, unlawful
209	209	enlistment, appointment, or separation; 85, desertion; 86, absence without leave; 87,
210	210	missing movement; 88, contempt toward officials; 89, disrespect towards superior
211	211	commissioned officer; 90, assaulting or willfully disobeying superior commissioned
212	212	officer; 91, insubordinate conduct toward warrant officer, noncommissioned officer,
213	213	or petty officer; 92, failure to obey order or regulation; 93, cruelty and maltreatment;
214	214	93a, prohibited activities with military recruit or trainee by a person in a position of
215	215	special trust; 94, mutiny or sedition; 95, resistance, flight, breach of arrest, and
216	216	escape; 96, releasing prisoner without proper authority; 97, unlawful detention; 98,
217	217	noncompliance with procedural rules; 99, misbehavior before the enemy; 100,
218	218	subordinate compelling surrender; 101, improper use of countersign; 102, forcing a
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242	242	SECTION 3 ASSEMBLY BILL 177
243	243	safeguard; 103, captured or abandoned property; 104, aiding the enemy; 105,
244	244	misconduct as prisoner; 107, false official statements; 108, military property — loss,
245	245	damage, destruction, or wrongful disposition; 109, property other than military
246	246	property — waste, spoilage, or destruction; 110, improper hazarding of vessel; 111,
247	247	drunken or reckless operation of a vehicle, aircraft, or vessel; 112, drunk on duty;
248	248	112a, wrongful use, or possession of controlled substances; 113, misbehavior of
249	249	sentinel; 114, dueling; 115, malingering; 116, riot or breach of peace; 117, provoking
250	250	speeches or gestures; 120, rape and sexual assault generally; 120a, stalking; 120b,
251	251	rape and sexual assault of a child; 120c, sexual misconduct; 121, larceny and
252	252	wrongful appropriation; 122, robbery; 123, forgery; 124, maiming; 126, arson; 127,
253	253	extortion; 128, assault; 129, burglary; 130, housebreaking; 131, perjury; 132, frauds
254	254	against the government; 132a, retaliation; 133, conduct unbecoming an officer and
255	255	a gentleman; and; 134, general; and 134h, sexual harassment; of this code.
256	256	SECTION 4. 322.001 (16) of the statutes is repealed.
257	257	SECTION 5. 322.036 of the statutes is amended to read:
258	258	322.036 Article 36 — Governor may prescribe regulations Pretrial,
259	259	trial, and post-trial procedures. Pretrial, trial, and post-trial procedures not
260	260	specified in this code, including modes of proof, for courts-martial cases arising
261	261	under this code, and for courts of inquiry, may shall be prescribed by the governor
262	262	by regulations, or as otherwise provided by law, which shall apply the principles of
263	263	law and the rules of evidence generally recognized in military criminal cases in the
264	264	courts of the armed forces but which may not be contrary to or inconsistent with this
265	265	code adjutant general in writing and made publicly available on the department of
266	266	military affairs' website.
267	267	SECTION 6. 322.056 (2) of the statutes is amended to read:
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295	295	SECTION 6
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297	297	322.056 (2) A conviction by a general court-martial of any military offense for
298	298	which an accused may receive a sentence of confinement for more than 1 year is a
299	299	felony offense.
300	300	SECTION 7. 322.056 (5) of the statutes is amended to read:
301	301	322.056 (5) The limits of punishment for violations of the punitive sections
302	302	under Subch. X shall be those under the Uniform Code of Military Justice, unless
303	303	otherwise prescribed by the governor according to ss. 322.018 to 322.020, but under
304	304	no instance shall any punishment exceed that authorized by this code.
305	305	SECTION 8. 322.0935 of the statutes is created to read:
306	306	322.0935 Article 93a - Prohibited activities with military recruit or
307	307	trainee by a person in a position of special trust. (1) In this section:
308	308	(a) “Applicant for military service” means a person who, under regulations
309	309	prescribed by the secretary of the relevant military branch, is an applicant for
310	310	original enlistment or appointment in the state military forces.
311	311	(b) “Military recruiter” means a person who, under regulations prescribed by
312	312	the secretary of the relevant military branch, has the primary duty to recruit persons
313	313	for military service.
314	314	(c) “Prohibited sexual activity” means any sexual act, as defined in s. 322.120
315	315	(1) (e), or any sexual contact, as defined in s. 322.120 (1) (f), or any attempt or
316	316	solicitation to commit a sexual act or sexual contact.
317	317	(d) “Specially protected junior member of the state military forces” means any
318	318	of the following:
319	319	1. A member of the state military forces who is assigned to, or is awaiting
320	320	assignment to, basic training or other initial active duty for training, including a
321	321	member who is enlisted under a delayed entry program.
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349	349	2. A member of the state military forces who is a cadet, candidate, or
350	350	midshipman, or a student in any other officer qualification program.
351	351	3. A member of the state military forces in any program that, by regulation
352	352	prescribed by the secretary of the relevant military branch, is identified as a training
353	353	program for initial career qualification.
354	354	(e) “Training leadership position” means, with respect to a specially protected
355	355	junior member of the state military forces, any drill instructor position or other
356	356	leadership position in a basic training program, an officer candidate school, a reserve
357	357	officers' training corps unit, a training program for entry into the state military
358	358	forces, or any program that, by regulation prescribed by the secretary of the relevant
359	359	military branch, is identified as a training program for initial career qualification.
360	360	(2) Any officer, noncommissioned officer, or petty officer who is in a training
361	361	leadership position and engages in prohibited sexual activity with a specially
362	362	protected junior member of the state military forces shall be punished as a
363	363	court-martial may direct.
364	364	(3) Any person who is a military recruiter and engages in prohibited sexual
365	365	activity with an applicant for military service or a specially protected junior member
366	366	of the state military forces who is enlisted under a delayed entry program shall be
367	367	punished as a court-martial may direct.
368	368	(4) Consent is not a defense for any conduct at issue in a prosecution under this
369	369	section.
370	370	SECTION 9. 322.120 (1) (a) of the statutes is repealed.
371	371	SECTION 10. 322.120 (3) (a) (intro.) of the statutes is amended to read:
372	372	322.120 (3) (a) (intro.) Commits a sexual act upon another person without
373	373	consent by doing any of the following:
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401	401	SECTION 11
402	402	ASSEMBLY BILL 177
403	403	SECTION 11. 322.120 (3) (b) of the statutes is renumbered 322.120 (3) (b) (intro.)
404	404	and amended to read:
405	405	322.120 (3) (b) (intro.) Commits a sexual act upon another person when under
406	406	one of the following circumstances:
407	407	2. When the person knows or reasonably should know that the other person is
408	408	asleep, unconscious, or otherwise unaware that the sexual act is occurring.
409	409	SECTION 12. 322.120 (3) (b) 1. of the statutes is created to read:
410	410	322.120 (3) (b) 1. Without the consent of the other person.
411	411	SECTION 13. 322.1325 of the statutes is created to read:
412	412	322.1325 Article 132a - Retaliation. (1) In this section:
413	413	(a) “Protected communication” means any of the following:
414	414	1. A lawful communication to a member of Congress, a member of the
415	415	Wisconsin legislature, the governor, or an inspector general.
416	416	2. A communication to a member of the U.S. department of defense or the U.S.
417	417	national guard bureau, a law enforcement officer, a state agency, a legislative service
418	418	agency, a person in the chain of command, or a court-martial proceeding in which
419	419	a member of the state military forces complains of, or discloses information that the
420	420	member reasonably believes constitutes evidence of, a violation of a law or
421	421	regulation, including a law or regulation prohibiting sexual harassment or unlawful
422	422	discrimination, or gross mismanagement, a gross waste of funds, an abuse of
423	423	authority, or a substantial and specific danger to public health or safety.
424	424	(b) “Unlawful discrimination” means discrimination on the basis of race, color,
425	425	religion, sex, or national origin.
426	426	(2) Any person who, with intent to retaliate against any person for reporting
427	427	or planning to report a criminal or military offense or for making or planning to make
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455	455	a protected communication, or with intent to discourage any person from reporting
456	456	a criminal or military offense or making a protected communication, does any of the
457	457	following shall be punished as a court-martial may direct:
458	458	(a) Wrongfully takes or threatens to take an adverse personnel action against
459	459	any person.
460	460	(b) Wrongfully withholds or threatens to withhold a favorable personnel action
461	461	with respect to any person.
462	462	SECTION 14. 322.133 of the statutes is amended to read:
463	463	322.133 Article 133 — Conduct unbecoming an officer and a gentleman.
464	464	Any commissioned officer, cadet, candidate, or midshipman who is convicted of
465	465	conduct unbecoming an officer and a gentleman shall be punished as a court-martial
466	466	may direct.
467	467	SECTION 15. 322.1345 of the statutes is created to read:
468	468	322.1345 Article 134h - Sexual harassment. Any person who knowingly
469	469	makes an unwelcome sexual advance, demand, or request for a sexual favor or
470	470	knowingly engages in other unwelcome conduct of a sexual nature shall be punished
471	471	as a court-martial may direct if all of the following apply:
472	472	(1) The sexual advance, demand, request, or conduct of a sexual nature
473	473	satisfies any of the following conditions:
474	474	(a) It would, under the circumstances, cause a reasonable person to believe, and
475	475	at least one person did believe, that submission to or rejection of such an advance,
476	476	demand, request, or conduct would be made, either explicitly or implicitly, a term or
477	477	condition of that person's job, pay, career, benefits, or entitlements or would be used
478	478	as a basis for decisions affecting that person's job, pay, career, benefits, or
479	479	entitlements.
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504	504	25 - 11 -2023 - 2024 Legislature
505	505	LRB-0834/1
506	506	MJW:all
507	507	SECTION 15
508	508	ASSEMBLY BILL 177
509	509	(b) It was so severe, repetitive, or pervasive that a reasonable person would
510	510	perceive, and at least one person did perceive, an intimidating, hostile, or offensive
511	511	working environment.
512	512	(2) The sexual advance, demand, request, or conduct of a sexual nature was to
513	513	the prejudice of good order and discipline in the state military forces or of a nature
514	514	to bring discredit upon the state military forces, or both.
515	515	(END)
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