2023 WISCONSIN ACT 47
An Act to repeal 322.001 (16) and 322.120 (1) (a); to renumber and amend 322.120 (3) (b); to amend 322.001 (15), 322.036, 322.056 (2), 322.056 (5), 322.120 (3) (a) (intro.) and 322.133; and to create 321.04 (1) (sm), 321.04 (1) (t), 322.0935, 322.120 (3) (b) 1., 322.1325 and 322.1345 of the statutes; relating to: punitive articles in the Wisconsin Code of Military Justice prohibiting certain activities; procedures applicable to courts-martial cases under the Wisconsin Code of Military Justice; treatment of victims of an offense under the Wisconsin Code of Military Justice; defining military offenses under the Wisconsin Code of Military Justice; punishments for violations of the Wisconsin Code of Military Justice; and the removal of gender-specific language from the Wisconsin Code of Military Justice.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council Study Committee on Wisconsin National Guard Sexual Misconduct Procedures. Under current law, members of the Wisconsin National Guard on state status are subject to the Wisconsin Code of Military Justice (WCMJ), which codifies offenses that may be punished under the code and establishes procedures for enforcing the code. If on federal status, National Guard members are subject instead to the federal Uniform Code of Military Justice (UCMJ).
The bill makes a number of changes to the WCMJ. Specifically, the bill clarifies the offenses over which courts-martial have primary jurisdiction; specifies the limits of punishment under the WCMJ; directs the Adjutant General to prescribe rules of procedure for courts-martial arising under the WCMJ; codifies offenses related to retaliation, sexual harassment, and engaging in prohibited sexual activity with a recruit or trainee to reflect the inclusion of those offenses in the UCMJ; modifies the elements of sexual assault to reflect changes to the elements of that offense under the UCMJ; and removes certain gender-specific language from the WCMJ. The bill also requires the Adjutant General to prescribe and implement a policy that ensures that any victim of an offense under the WCMJ is treated with dignity, respect, courtesy, sensitivity, and fairness.
Jurisdiction of Courts-Martial
Under the WCMJ, courts-martial have primary jurisdiction of military offenses, while civilian criminal courts have primary jurisdiction of nonmilitary offenses when an act or omission violates both the WCMJ and civilian criminal law. When a civilian court has primary jurisdiction over an offense, the National Guard may initiate a court-martial proceeding only after the civilian authority has declined to prosecute or dismissed the charge, provided that jeopardy has not attached. The National Guard may, however, take administrative disciplinary actions against a person for violating an offense over which a civilian court has primary jurisdiction regardless of whether the civilian authority prosecutes the offense.
The WCMJ defines “military offense” by enumerating the offenses that satisfy this definition. It defines “nonmilitary offenses” as offenses that are in the state’s civilian penal statute and are not offenses under the WCMJ. Under current law, the definition of “military offense” includes several offenses that are offenses under both the WCMJ and civilian criminal law, which appears to give courts-martial, rather than civilian criminal courts, primary jurisdiction over those offenses. The bill clarifies that civilian authorities have primary jurisdiction over the offenses of rape and sexual assault; stalking; rape and sexual assault of a child; sexual misconduct; larceny and wrongful appropriation; robbery; forgery; maiming; arson; extortion; assault; burglary; housebreaking; and perjury.
Rules of Procedure
Under current law, the Governor may prescribe pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial cases arising under the WCMJ. These procedures shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the armed forces but which may not be contrary to or inconsistent with the WCMJ. The bill modifies this provision to require the Adjutant General to prescribe pretrial, trial, and post-trial procedures for courts-martial cases arising under the WCMJ in writing and make these procedures publicly available on the department’s website.