Existing law establishes the Sexual Assault Victims DNA Bill of Rights, which, among other things, encourages a law enforcement agency assigned to investigate specified sexual assault offenses to perform DNA testing of rape kit evidence or other crime scene evidence in a timely manner to assure the longest possible statute of limitations. Existing law also requires a law enforcement agency to inform victims of certain unsolved sexual assault offenses if the law enforcement agency elects not to analyze DNA evidence within certain time limits.

This bill would require law enforcement agencies to report information regarding rape kit evidence to the department through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, the number of kits from which one or more biological evidence samples were submitted to a DNA laboratory for analysis, and the number of kits from which a probative DNA profile was generated. The bill would additionally require a public DNA laboratory, or a law enforcement agency contracting with a private laboratory, to provide a reason for not testing a sample every 120 days the sample is untested, except as specified. By imposing additional duties on local law enforcement, this bill would create a state-mandated local program.

This bill would require the department to file a report to the Legislature on an annual basis summarizing the information in its database. The bill would prohibit law enforcement agencies or laboratories from being compelled to provide any contents of the database in a civil or criminal case, except as required by a law enforcement agencys duty to produce exculpatory evidence to a defendant in a criminal case.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law establishes the Sexual Assault Victims DNA Bill of Rights, which, among other things, encourages a law enforcement agency assigned to investigate specified sexual assault offenses to perform DNA testing of rape kit evidence or other crime scene evidence in a timely manner to assure the longest possible statute of limitations. Existing law also requires a law enforcement agency to inform victims of certain unsolved sexual assault offenses if the law enforcement agency elects not to analyze DNA evidence within certain time limits.

This bill would require law enforcement agencies to report information regarding rape kit evidence to the department through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, the number of kits from which one or more biological evidence samples were submitted to a DNA laboratory for analysis, and the number of kits from which a probative DNA profile was generated. The bill would additionally require a public DNA laboratory, or a law enforcement agency contracting with a private laboratory, to provide a reason for not testing a sample every 120 days the sample is untested. untested, except as specified. By imposing additional duties on local law enforcement, this bill would create a state-mandated local program.

This bill would require the department to file a report to the Legislature on a quarterly an annual basis summarizing the information in its database. The bill would prohibit law enforcement agencies or laboratories from being compelled to provide any contents of the database in a civil or criminal case, except as required by a law enforcement agencys duty to produce exculpatory evidence to a defendant in a criminal case.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law establishes the Sexual Assault Victims DNA Bill of Rights, which, among other things, encourages a law enforcement agency assigned to investigate specified sexual assault offenses to perform DNA testing of rape kit evidence or other crime scene evidence in a timely manner to assure the longest possible statute of limitations. Existing law also requires a law enforcement agency to inform victims of certain unsolved sexual assault offenses if the law enforcement agency elects not to analyze DNA evidence within certain time limits.

Existing law establishes the Sexual Assault Victims DNA Bill of Rights, which, among other things, encourages a law enforcement agency assigned to investigate specified sexual assault offenses to perform DNA testing of rape kit evidence or other crime scene evidence in a timely manner to assure the longest possible statute of limitations. Existing law also requires a law enforcement agency to inform victims of certain unsolved sexual assault offenses if the law enforcement agency elects not to analyze DNA evidence within certain time limits.

This bill would make technical, nonsubstantive changes to these provisions.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1848 (Chiu) - DNA evidence

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1848 would require local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking (SAFE-T) database on the disposition of all sexual assault evidence kits in their custody, as specified.

Fiscal Impact:

• Local law enforcement agencies: Ongoing costs potentially in excess of $150,000 annually statewide to local law enforcement agencies, potentially state-reimbursable (General Fund), for mandated data collection, written statements, and reporting workload. The magnitude of costs to each agency would be dependent on the reporting frequency, the specified time period (specifically whether retroactive reporting would be required), and the data required to be reported, which is unspecified and subject to the DOJ’s discretion. Reporting the reason why a rape kit was not tested is assumed to be more resource intensive than providing only statistical data. Costs incurred across the 482 cities and 58 counties in California could vary widely.
• Department of Justice (DOJ): Ongoing minor costs (Special Fund*) to collect the data electronically and submit an annual legislative report summarizing the data entered into the SAFE-T database.
• CHP/CDCR: Minor ongoing workload and costs (Special Fund**/General Fund) for annual reporting of DNA evidence collected.

*DNA Identification Fund

**Motor Vehicle Account

Background:

In its report, “Sexual Assault Evidence Kits: Although Testing All Kits Could Benefit Sexual Assault Investigations, the Extent of the Benefits Is Unknown,” (Report 2014-109, October 2014), the California State Auditor noted the following results in brief:

In the last few years, questions about why sexual assault evidence kits are not sent to crime labs for analysis have been raised at the state and national levels. For example, multiple news media outlets have covered stories about unanalyzed sexual assault evidence kits that exist across several jurisdictions in the country. Several major metropolitan areas, including Detroit, Michigan; Memphis, Tennessee; and Los Angeles County, have been the subject of national attention focused on the number of sexual assault evidence kits that law enforcement agencies in these jurisdictions did not send for analysis. In a May 2011 special report titled The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases, the National Institute of Justice – the research arm of the federal Department of Justice – stated that untested sexual assault kit evidence is being discovered at law enforcement agencies across the country. While the report acknowledges that there may be legitimate reasons why a sexual assault evidence kit is not sent for analysis, it concludes that more information is needed about why agencies decide to send some kits but not others.

The California State Auditor made several recommendations in its report, including but not limited to the following:

• To establish more comprehensive information about sexual assault evidence kits, specifically the number of kits collected and the number of kits analyzed across the State, the Legislature should direct law enforcement agencies to report to Justice annually how many sexual assault evidence kits they collect and how many kits they analyze each year. The Legislature should also require an annual report from Justice that details this information.
• To provide the Legislature and the public with more complete information about agency decisions not to analyze sexual assault evidence kits, the Legislature should direct agencies to report annually to Justice their reasons for not analyzing sexual assault evidence kits. The Legislature should require an annual report from Justice that details this information.

As stated in this measure’s legislative findings and declarations, “There is a significant public interest in knowing what percentage of rape kits are analyzed for the perpetrator’s DNA profile, as well as why any untested rape kits are not analyzed. Currently, there is no mandatory statewide tracking mechanism in place to collect and report these metrics. It is the intent of the Legislature in enacting this section, pursuant to recommendations by the California State Auditor to the Joint Legislative Audit Committee, to correct that.”

“In 2015, the Department of Justice created the Sexual Assault Forensic Evidence Tracking (SAFE-T) database to track the status of all sexual assault evidence kits collected in the state based on voluntary data input from law enforcement agencies. It is the intent of the Legislature by enacting this section to require participation in that database.”

Proposed Law:

This bill, on a schedule set forth by the DOJ, requires each law enforcement agency that has investigated a case involving the collection of sexual assault kit evidence during the relevant period of time, as determined by the DOJ to report to the DOJ through the SAFE-T database, the data required by the DOJ in its communications to law enforcement. The data shall include, but are not limited to, the following:

• The number of kits collected during the period.
• The number of kits from which one or more biological evidence samples were submitted to a DNA laboratory for analysis.
• The number of kits from which a probative DNA profile was generated.
• The reason or reasons for not submitting evidence from a given rape kit to a DNA laboratory for processing.

Additionally, this bill:

• Requires a public laboratory to provide the reasons for the status in the appropriate SAFE-T data field, after 120 days following submission of rape kit biological evidence for processing, if a public DNA laboratory has not conducted DNA testing.
• If the investigating law enforcement agency has contracted with a private laboratory to conduct DNA testing on rape kit evidence, the submitting law enforcement agency shall provide the 120-day update in SAFE-T. The process described is required to take place every 120 days until DNA testing occurs, except as specified.
• Upon expiration of a sexual assault case’s statute of limitations, or if a law enforcement agency elects not to analyze the DNA or intends to destroy or dispose of the crime scene evidence, requires the investigating law enforcement agency to state in writing the reason the kit collected as part of that case’s investigation was not analyzed. This written statement relieves the investigating law enforcement agency or public laboratory of any further duty to report information related to that kit pursuant to this section.
• Provides that the SAFE-T database shall not contain any identifying information about a victim or a suspect, shall not contain any DNA profiles, and shall not contain any information that would impair a pending criminal investigation.
• On an annual basis, requires the DOJ to file a report to the Legislature summarizing data entered into the SAFE-T database during that year. Specifies the report shall not reference individual victims, suspects, investigations, or prosecutions. Requires the report to be made public by the DOJ.
• In order to protect the confidentiality of the SAFE-T database information, provides that the SAFE-T database contents to be confidential and a participating law enforcement agency or laboratory shall not be compelled in a criminal or civil proceeding, except as required by Brady v. Maryland (1963) 373 U.S. 83, to provide any SAFE-T database contents to any person or party seeking those records or information.
• Includes codified Legislative findings and declarations (reflected in the Background section of this analysis).

Related Legislation: AB 909 (Quirk) 2015 would have required a law enforcement agency responsible for taking or processing rape kit evidence to annually report, by July 1 of each year, to the DOJ information pertaining to the processing of rape kits, including the number of rape kits the law enforcement agency collects, the number of those rape kits that are tested, and the number of those rape kits that are not tested. For those rape kits that are not tested, the bill would require the law enforcement agency to also report the reason the rape kit was not tested. This bill was held on the Suspense File of this Committee.

AB 2499 (Maienschein) 2016 would require the DOJ, on or before July 1, 2018, to establish a process by which victims of sexual assault may inquire regarding the location and information regarding their sexual assault evidence kits. This bill is scheduled to be heard today by this Committee.

Prior Legislation:

AB 1517 (Skinner) Chapter 874/2014 AB 1517 (Skinner) Chapter 874/2014 sets timelines for law enforcement agencies and crime labs to perform and process DNA testing of rape kit evidence.

AB 322 (Portantino) 2011 would have established a three-year pilot program in 10 counties, commencing July 1, 2012, in which all rape kits collected in those counties after that date will be processed by the DOJ in department laboratories. This bill was vetoed by the Governor with the following message:

I am returning Assembly Bill 322 without my signature. This measure would establish a new pilot program and require the Department of Justice to test all rape kits collected from 10 specified counties. These counties, however, don't wish to participate in the program. I don't see why we would mandate counties to participate in a program they don't want, especially when the state is cutting back on so many programs that are needed and wanted. Local officials are in the best position to determine whether to participate in such a program.

Staff Comments:

By requiring law enforcement agencies responsible for taking or processing rape kit evidence to report periodically on specified information collected during the preceding year to the DOJ, this bill creates a state-mandated local program. The potential costs associated with this mandate are unknown, and would vary by city and county. In addition to great variation in the number of rape kits among cities and counties, local law enforcement agencies organize, store, log, and track rape kits differently. For cities and counties which have their evidence logs computerized, this bill requires a much smaller task than for those that do not.

It is estimated that all law enforcement entities, both local and state, would be subject to the data collection and reporting requirements of this bill. There are currently 482 cities and 58 counties in the State. While statewide costs cannot be estimated with certainty, given the large number of local agencies and the non-numerical information required to be collected and reported, these activities could result in significant one-time and ongoing costs potentially in excess of several hundred thousand dollars annually. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).

While the workload involved to report the number of rape kits collected, tested, and untested, may not be substantial, the workload required to document and report the reason for each rape kit that remains untested would be much more resource intensive. Staff notes, as drafted, it is unclear whether retroactive reporting of an agency’s existing backlog would be required, or whether reporting would be required prospectively only. As the bill provides DOJ with the discretion to determine the frequency of reporting and the collection of sexual assault kit evidence “during the relevant period of time,” both of which are unspecified, the potential workload impact to local agencies is unknown but potentially significant.

The CHP and CDCR have both indicated minor, absorbable workload to meet the reporting requirements of this bill.

Recommended Amendments:

This bill contains codified findings and declarations. In the interest of code clarity and efficiency, staff recommends this bill be amended to place the findings and declarations (Penal Code § 680.1, subdivision (a)) in an uncodified section of the bill.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1848 Hearing Date: June 21, 2016

Subject: DNA Evidence

HISTORY

Source: Attorney General’s Office

Prior Legislation: AB 1517 (Skinner) – Ch. 874, Stats. 2014

AB 322 (Portantino) –Vetoed 2011

AB 558 (Portantino) –Vetoed 2010

AB 1017 (Portantino) –Vetoed 2009

Support: Alameda County District Attorney; CALCASA: California Partnership to End Domestic Violence; City and County of San Francisco; The Junior League of San Francisco, Inc.; National Council of Jewish Women California; Planned Parenthood Affiliates of California; RISE; San Francisco Sheriff

Opposition: California State Sheriffs’ Association

Assembly Floor Vote: 77 - 0

PURPOSE

The purpose of this bill is to require local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking database (SAFE-T) on the disposition of all sexual assault evidence kits (rape kits) in their custody.

Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit deoxyribonucleic acid (DNA) samples. (Penal Code § 296.)

Existing law establishes the DNA and Forensic Identification Database and Data Bank Program to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children. (Penal Code §§ 295, 295.1.)

Existing law encourages DNA analysis of rape kits within the statute of limitations, which states that a criminal complaint must be filed within one year after the identification of the suspect by DNA evidence, and that DNA evidence must be analyzed within two years of the offense for which it was collected. (Penal Code, § 680 (b)(6).)

Existing law encourages law enforcement agencies to submit rape kits to crime labs within 20 days after the kit is booked into evidence. (Penal Code, § 680 (b)(7)(A)(i).)

Existing law encourages the establishment of rapid turnaround DNA programs, where the rape kit is sent directly from the facility where it was collected to the lab for testing within five days. (Penal Code, § 680(b)(7)(A)(ii) and (E).)

Existing law encourages crime labs to do one of the following: a) Process rape kits, create DNA profiles when possible, and upload qualifying DNA profiles into CODIS within 120 days of receipt of the rape kit; or b) Transmit the rape kit to another crime lab within 30 days to create a DNA profile, and then upload the profile into CODIS within 30 days of being notified about the presence of DNA. (Penal Code, § 680 (b)(7)(B).)

Existing law requires law enforcement agencies to inform victims in writing if they intend to destroy a rape kit 60 days prior to the destruction of the rape kit, when the case is unsolved and the statute of limitations has not run. (Penal Code, §§ 680 (e) and (f), 803.)

This bill finds and declares that there is a significant public interest in knowing whether rape kits have been tested and if the kits have not been tested, the reasons why they were not tested.

This bill requires participation by law enforcement agencies in the SAFE-T database.

This bill requires law enforcement agencies, on a schedule set by the Department of Justice (DOJ) to submit via SAFE-T the:

• Number of rape kits collected during the set period;
• Number of kits where biological evidence was submitted to a DNA laboratory for analysis;
• Number of kits from which a DNA profile hit was generated: and
• Reasons why a particular rape kit was not submitted to a DNA laboratory for testing.

This bill requires DNA laboratories to enter into SAFE-T, every 120 days, and the reasons why any particular rape kit has not been tested.

This bill provides that upon expiration of a sexual assault case’s statute of limitations, or if a law enforcement agency elects not to analyze the DNA or intends to destroy or dispose of crime scene evidence, the investigating law enforcement agency shall state in writing the reason the kit collected as part of the case’s investigation was not analyzed. This written statement relieves the law enforcement agency or public laboratory of any further duty to report information related to that kit.

This bill states that SAFE-T shall not contain any identifying information about a victim or a suspect, any DNA profiles, or any information that would impair a pending criminal investigation.

This bill requires DOJ to report annually to the Legislature a summary of the information entered into SAFE-T.

This bill states that, beside the required report to the Legislature, all contents of SAFE-T shall be confidential, and no law enforcement agency or laboratory may be compelled in a civil or criminal proceeding to disclose the contents of SAFE-T unless the contents contain exculpatory evidence for a criminal defendant.

This bill finds and declares that it is necessary to keep SAFE-T’s contents confidential in order to protect victims of crime.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

In recent years, the federal government has identified hundreds of thousands of rape kits that have gone unanalyzed, known as the “rape kit backlog.” Some jurisdictions have worked to decrease their backlogs to varying degrees. However, in California, no comprehensive data is currently available about the number of sexual assault evidence kits that local law enforcement agencies collect annually or how many of those kits are analyzed. Further, no comprehensive data exists about the reasons some sexual assault evidence kits are not analyzed.

A 2014 report by the California State Auditor revealed that each year, thousands of kits go unanalyzed by a DNA laboratory for a variety of reasons. The scope of the statewide rape kit backlog cannot be determined because of a lack of effective tracking at the local level. More comprehensive data could assist policy makers as they consider whether law enforcement agencies’ current approaches in this area need to change or whether or not law enforcement needs additional resources to better manage the processing of kits.

In many cases, survivors of sexual assault experience re-traumatization when undergoing the forensic evidence collection process. The neglect of these kits with no explanation why they were not analyzed simply adds to the trauma ensured by survivors seeking justice.

To address these issues, the State Auditor recommended that agencies track each sexual assault evidence kit they collect and report to the California Department of Justice (DOJ) on how many are analyzed and why some are not. In response to the State Auditor’s report, DOJ created the Sexual Assault Forensic Evidence Tracking system, or SAFE-T. This database allows local agencies to log and provide status updates for each kit they collect. With documented reasons for the decisions, agencies would be able to clearly demonstrate to victims, policy makers, and other interested parties why they did not request such analyses.

AB 1848 would require local agencies to track all rape kits collected from survivors by using SAFE-T in accordance with the State Auditor’s recommendations.

2. Tracking of Rape Kit Tests

A recent report by the California State Auditor found that law enforcement agencies rarely document reasons for not analyzing sexual assault evidence kits. (California State Auditor, Sexual Assault Evidence Kits (Oct. 2014).) Specifically, the report found that:

[i]n 45 cases . . . reviewed in which investigators at the three agencies we visited did not request a kit analysis; the investigators rarely documented their decisions. As a result, we often could not determine with certainty why investigators decided that kit analysis was not needed. Among the 15 cases we reviewed at each of the three locations, we found no examples of this documentation at either the Sacramento Sheriff or the San Diego Police Department, and we found only six documented explanations at the Oakland Police Department. Investigative supervisors at both the Sacramento Sheriff and the San Diego Police Department indicated that their departments do not require investigators to document a decision not to analyze a sexual assault evidence kit. The lieutenant at the Oakland Police Department’s Special Victims Section stated that, during the period covered by our review, the section expected such documentation from its investigators in certain circumstances, but that it was not a formal requirement at that time. (Id. at p. 23.)

Upon a more in-depth review of the individual cases, the report found that analysis of the kits would not have been likely to further the investigation of those cases:

[The] decisions not to request sexual assault evidence kit analysis in the individual cases we reviewed appeared reasonable because kit analysis would be unlikely to further the investigation of those cases. We reviewed specific cases at each agency in which investigators did not request analysis. Our review included 15 cases from each of the three agencies we visited with offenses that occurred from 2011 through 2013, for a total of 45 cases. In those cases, we did not identify any negative effects on the investigations as a result of decisions not to request analysis. We based our conclusions on the circumstances present in the individual cases we reviewed, as documented in the files for the 45 cases and as discussed with the investigative supervisors." (Id. at p. 21.)

Even though the individual reasons for not testing the kits was found to be reasonable, the report still stressed the need for more information about why agencies decide to send some kits but not others. It would benefit not only investigators, but the public as well, because requiring investigators to document their reasons for not requesting kit analysis would assist agencies in responding to the public concern about unanalyzed kits. Doing so would allow for internal review and would increase accountability to the public. (Id. at pp. 23-24.)

3. Requiring Tracking

This bill would require law enforcement agencies to report information regarding rape kit evidence to the department through a database established by the Department of Justice (DOJ). For the reporting period set up by the DOJ the agency will report the number of kits collected; the number of kits from which one or more biological samples were submitted to a DNA laboratory for analysis; the number of kits from which a probative DNA profile was generated; and, the reason or reasons for not submitting evidence from a given rape kit to a DNA laboratory for processing. The agency shall also report the reason any kit submitted for processing has not been processed within 120 days. The DOJ will then compile the information in an annual report to the Legislature.

4. Support

CALCASA supports this bill stating in part:

In recent years, the federal government identified hundreds of thousands of rape kits that have gone unanalyzed, known as the “rape kit backlog.” Some jurisdictions have worked to decrease their backlogs to varying degrees. However, in California, no comprehensive data is currently available about the number of sexual assault evidence kits that local law enforcement agencies collect annually or how many of those kits are analyzed. Further, no comprehensive data exists about the reasons some sexual assault evidence kits are not analyzed.

The scope of this problem cannot be properly estimated due to a lack of effective tracking at the local level. With documented reasons for the decisions, agencies would be able to clearly demonstrate to victims, policy makers, and other interested parties why they did not request analyses of each kit.

5. Opposition

The California State Sheriffs’ Association opposes this bill stating:

We share your intent that sexual assaults are investigated and that perpetrators not go unpunished. In 2014 CSSA worked with Assembly Member Nancy Skinner to amend her AB 1517 into a final product that will help achieve those goals without being overly burdensome. However, by requiring law enforcement agencies to provide statistics to DOJ, AB 1848 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel

Existing law permits law enforcement to notify a victim about the status of his or her rape kit upon the victim’s request as well as requires law enforcement to notify a victim of his or her rape kit is going to be disposed of or not tested. We do not feel that this balanced approach requires alteration.

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ASSEMBLY THIRD READING

ATR Bill Id:AB 1848

Author:(Chiu and Quirk)

As Amended Ver:May 9, 2016

Majority vote

SUMMARY: Requires local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking database (SAFE-T) on the disposition of all sexual assault evidence kits (rape kits) in their custody. Specifically, this bill:

1. Finds and declares that there is a significant public interest in knowing whether rape kits have been tested and if the kits have not been tested, the reasons why they were not tested.
2. Requires participation by law enforcement agencies in the SAFE-T database.
3. Requires law enforcement agencies, on a schedule set by the Department of Justice (DOJ) to submit via SAFE-T the:
   1. Number of rape kits collected during the set period,
   2. Number of kits where biological evidence was submitted to a deoxyribonucleic acid (DNA) laboratory for analysis,
   3. Number of kits from which a DNA profile hit was generated, and
   4. Reasons why a particular rape kit was not submitted to a DNA laboratory for testing.
4. Requires DNA laboratories to enter into SAFE-T, every 120 days, and the reasons why any particular rape kit has not been tested.
5. Provides that when the statute of limitations has expired, or when a law enforcement agency elects not to analyze DNA, or to destroy or dispose of it, the agency shall provide a written statement explaining why the kit was not analyzed. This statement relieves the agency of any further duty to report.
6. States that SAFE-T shall not contain any identifying information about a victim or a suspect, any DNA profiles, or any information that would impair a pending criminal investigation.
7. Requires DOJ to annually report to the Legislature a summary of the information entered into SAFE-T.
8. States that, beside the required report to the Legislature, all contents of SAFE-T shall be confidential, and no law enforcement agency or laboratory may be compelled in a civil or criminal proceeding to disclose the contents of SAFE-T unless the contents contain exculpatory evidence for a criminal defendant.
9. Finds and declares that it is necessary to keep SAFE-T's contents confidential in order to protect victims of crime.

EXISTING LAW:

1. Requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples.
2. Establishes the DNA and Forensic Identification Database and Data Bank Program to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.
3. Encourages DNA analysis of rape kits within the statute of limitations, which states that a criminal complaint must be filed within one year after the identification of the suspect by DNA evidence, and that DNA evidence must be analyzed within two years of the offense for which it was collected.
4. Encourages law enforcement agencies to submit rape kits to crime labs within 20 days after the kit is booked into evidence.
5. Encourages the establishment of rapid turnaround DNA programs, where the rape kit is sent directly from the facility where it was collected to the lab for testing within five days.
6. Encourages crime labs to do one of the following:
   1. Process rape kits, create DNA profiles when possible, and upload qualifying DNA profiles into CODIS within 120 days of receipt of the rape kit; or
   2. Transmit the rape kit to another crime lab within 30 days to create a DNA profile, and then upload the profile into Combined DNA Index System (CODIS) within 30 days of being notified about the presence of DNA.
7. Requires law enforcement agencies to inform victims in writing if they intend to destroy a rape kit 60 days prior to the destruction of the rape kit, when the case is unsolved and the statute of limitations has not run.

FISCAL EFFECT:

According to the Assembly Appropriations Committee:

1. Unknown minor reimbursable state mandated costs (General Fund) for local agencies to provide the required information, in a yet unspecified schedule, to DOJ. However, this bill does require DOJ to submit quarterly reports to the Legislature; therefore staff assumes the information must be submitted at least quarterly. The database is web-based and free for local law enforcement agencies, so the only cost to local agencies will be workload to enter and data and any status updates. Also, DOJ manages all DNA evidence testing for 46 of the 58 counties; the reimbursable cost from the other 12 should be minor, if any. However, reporting the reason why a rape kit was not tested will be more resource intensive than providing statistical data; but that should not be a common occurrence.
2. Costs to DOJ are minor and absorbable.

COMMENTS:

According to the author, "When tested, DNA evidence can be an incredibly powerful tool to solve and prevent crime. It can identify an unknown assailant and confirm the presence of a known suspect. It can affirm the survivor's account of the attack and discredit the suspect. It can connect the suspect to other crime scenes. It can exonerate innocent suspects.

"However, as we've seen over the past few years, there has been widespread mismanagement of DNA evidence in sexual assault cases in many jurisdictions. Survivors of sexual assault who are submitting sexual assault evidence kits aren't getting the answers they need and deserve.

"To accomplish these things, however, rape kits must be tested. Right now, some kits are analyzed, but a vast majority is not. In California, we know there is a backlog of over 6,100 kits - but we don't know how long they've been sitting on the shelf, or if there were or were not legitimate reasons why they were not tested.

"Currently, there is no comprehensive data on how many rape kits are collected and the reasons why kits are not tested. To get at the crux of the backlog problem, we need to know how many kits are collected each year, and if they're not analyzed, we need to know why.

"AB 1848 aims to solve this problem by directing law enforcement agencies to track how many sexual assault evidence kits they collect and the number of kits they analyze each year, and further directing agencies to report annually to DOJ their reasons for not analyzing sexual assault evidence kits.

"Data and transparency are a necessary part of the solution. The data collected through AB 1848 could help policy makers consider whether law enforcement agencies' current approaches in this area need to change or whether or not law enforcement needs additional resources to better manage the processing of these kits."

Analysis Prepared by: Sandy Uribe/ PUB. S. / (916) 319-3744 FN: 0002900

ASSEMBLY THIRD READING

ATR Bill Id:AB 1848

Author:(Chiu)

As Amended Ver:March 15, 2016

Majority vote

SUMMARY:

Requires local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking database (SAFE-T) on the disposition of all sexual assault evidence kits (rape kits) in their custody. Specifically, this bill:

1. Finds and declares that there is a significant public interest in knowing whether rape kits have been tested and if the kits have not been tested, the reasons why they were not tested.
2. Requires participation by law enforcement agencies in the SAFE-T database.
3. Requires law enforcement agencies, on a schedule set by the Department of Justice (DOJ) to submit via SAFE-T the:
   1. Number of rape kits collected during the set period,
   2. Number of kits where biological evidence was submitted to a deoxyribonucleic acid (DNA) laboratory for analysis,
   3. Number of kits from which a DNA profile hit was generated, and
   4. Reasons why a particular rape kit was not submitted to a DNA laboratory for testing.
4. Requires DNA laboratories to enter into SAFE-T, every 120 days, and the reasons why any particular rape kit has not been tested.
5. States that SAFE-T shall not contain any identifying information about a victim or a suspect, any DNA profiles, or any information that would impair a pending criminal investigation.
6. Requires DOJ to report to the Legislature quarterly a summary of the information entered into SAFE-T.
7. States that, beside the required report to the Legislature, all contents of SAFE-T shall be confidential, and no law enforcement agency or laboratory may be compelled in a civil or criminal proceeding to disclose the contents of SAFE-T unless the contents contain exculpatory evidence for a criminal defendant.
8. Finds and declares that it is necessary to keep SAFE-T’s contents confidential in order to protect victims of crime.

EXISTING LAW:

1. Requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples.
2. Establishes the DNA and Forensic Identification Database and Data Bank Program to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.
3. Encourages DNA analysis of rape kits within the statute of limitations, which states that a criminal complaint must be filed within one year after the identification of the suspect by DNA evidence, and that DNA evidence must be analyzed within two years of the offense for which it was collected.
4. Encourages law enforcement agencies to submit rape kits to crime labs within 20 days after the kit is booked into evidence.
5. Encourages the establishment of rapid turnaround DNA programs, where the rape kit is sent directly from the facility where it was collected to the lab for testing within five days.
6. Encourages crime labs to do one of the following:
   1. Process rape kits, create DNA profiles when possible, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) within 120 days of receipt of the rape kit; or
   2. Transmit the rape kit to another crime lab within 30 days to create a DNA profile, and then upload the profile into CODIS within 30 days of being notified about the presence of DNA.
7. Requires law enforcement agencies to inform victims in writing if they intend to destroy a rape kit 60 days prior to the destruction of the rape kit, when the case is unsolved and the statute of limitations has not run.

FISCAL EFFECT:

According to the Assembly Appropriations Committee:

1. Unknown minor reimbursable state mandated costs (General Fund) for local agencies to provide the required information, in a yet unspecified schedule, to DOJ. However, this bill does require DOJ to submit quarterly reports to the Legislature; therefore staff assumes the information must be submitted at least quarterly. The database is web-based and free for local law enforcement agencies, so the only cost to local agencies will be workload to enter and data and any status updates. Also, DOJ manages all DNA evidence testing for 46 of the 58 counties; the reimbursable cost from the other 12 should be minor, if any. However, reporting the reason why a rape kit was not tested will be more resource intensive than providing statistical data; but that should not be a common occurrence.
2. Costs to DOJ are minor and absorbable.

COMMENTS:

According to the author, "When tested, DNA evidence can be an incredibly powerful tool to solve and prevent crime. It can identify an unknown assailant and confirm the presence of a known suspect. It can affirm the survivor's account of the attack and discredit the suspect. It can connect the suspect to other crime scenes. It can exonerate innocent suspects.

"However, as we've seen over the past few years, there has been widespread mismanagement of DNA evidence in sexual assault cases in many jurisdictions. Survivors of sexual assault who are submitting sexual assault evidence kits aren’t getting the answers they need and deserve.

"To accomplish these things, however, rape kits must be tested. Right now, some kits are analyzed, but a vast majority is not. In California, we know there is a backlog of over 6,100 kits – but we don’t know how long they’ve been sitting on the shelf, or if there were or were not legitimate reasons why they were not tested.

"Currently, there is no comprehensive data on how many rape kits are collected and the reasons why kits are not tested. To get at the crux of the backlog problem, we need to know how many kits are collected each year, and if they're not analyzed, we need to know why.

"AB 1848 aims to solve this problem by directing law enforcement agencies to track how many sexual assault evidence kits they collect and the number of kits they analyze each year, and further directing agencies to report annually to DOJ their reasons for not analyzing sexual assault evidence kits.

"Data and transparency are a necessary part of the solution. The data collected through AB 1848 could help policy makers consider whether law enforcement agencies' current approaches in this area need to change or whether or not law enforcement needs additional resources to better manage the processing of these kits."

Analysis Prepared by: Matt Dean/ PUB. S. / (916) 319-3744 FN: 0002805

Date of Hearing: April 27, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1848

Author:(Chiu) – As Amended Ver:March 15, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking database (SAFE-T) on the disposition of all sexual assault evidence kits (kits) in their custody by providing specific data. Also, the Department of Justice (DOJ) is required to provide quarterly reports to the Legislature summarizing the data received.

FISCAL EFFECT:

1. Unknown minor reimbursable state mandated costs (GF) for local agencies to provide the required information, in a yet unspecified schedule, to DOJ. However, AB 1848 does require DOJ to submit quarterly reports to the Legislature; therefore staff assumes the information must be submitted at least quarterly. The database is web-based and free for local law enforcement agencies, so the only cost to local agencies will be workload to enter and data and any status updates. Also, DOJ manages all DNA evidence testing for 46 of the 58 counties; the reimbursable cost from the other 12 should be minor, if any. However, reporting the reason why a rape kit was not tested will be more resource intensive than providing statistical data; but that should not be a common occurrence.
2. Costs to DOJ are minor and absorbable.

COMMENTS:

1. Background. Current law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples. It also specifies that law enforcement should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2015:
   
2. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or
   
3. Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.

Current law encourages DNA analysis of rape kits within the statute of limitations, which states that a criminal complaint must be filed within one year after the identification of the suspect by DNA evidence, and that DNA evidence must be analyzed within two years of the offense for which it was collected. Current law also encourages crime labs to do one of the following:

• 1. Process rape kits, create DNA profiles when possible, and upload qualifying DNA profiles into CODIS within 120 days of receipt of the rape kit; or
  2. Transmit the rape kit to another crime lab within 30 days to create a DNA profile, and then upload the profile into CODIS within 30 days of being notified about the presence of DNA

Current law also requires law enforcement agencies to inform victims in writing if they intend to destroy a rape kit 60 days prior to the destruction of the rape kit, when the case is unsolved and the statute of limitations has not run.

SAFE-T was created by DOJ in 2015, based on voluntary data input from law enforcement agencies, to help track how many rape kits were not being tested. However, a recent report by the California State Auditor found that law enforcement agencies rarely document reasons for not analyzing sexual assault evidence kits. The audit found 45 cases in which the kits were not submitted for analysis. Upon a more in-depth review of the individual cases, the report found that analysis of the kits would not have been likely to further the investigation of those cases. Even though the individual reasons for not testing the kits was found to be reasonable, the report still stressed the need for more information about why agencies decide to send some kits but not others.

1. Purpose. According to the author, there is no comprehensive data on how many rape kits are collected and the reasons why kits are not tested. The author argues that we need to know how many kits are collected each year, and if they’re not analyzed, we need to know why.

AB 1848 requires local law enforcement agencies to periodically update SAFE-T on the disposition of all sexual assault evidence kits in their custody by providing the following:

1. number of kits collected,
2. number of kits for which biological evidence samples were submitted to a DNA lab for analysis;
3. number of kits from which probative evidence was generated; and
4. reason for not submitting evidence from a given kit to a DNA lab. Also, if after 120 days the sample has not been tested, a public lab is required to provide a reason for the status, and if the DNA testing is performed by a private lab, the responsible law enforcement agency is required to provide updates on the status every 120 days.
5. Support: According to the sponsor, Attorney General Kamala Harris, “Recent years have seen a loudening outcry over a so-called 'rape kit backlog' in California and nationwide – allegations that many sexual assault evidence kits, possibly thousands, remain untested. There is no doubt that when evidence that could lead to the identification of an unknown assailant goes unanalyzed without good cause, some miscarriage of justice has occurred. At the same time, there are myriad reasons why a local agency sample may not be tested—many of which may well be legitimate—including resource limitations and decisions made as part of the prosecutorial process. In order to effectively address any perceived epidemic of unanalyzed kits, we must better understand the reasons why kits are not tested.
6. Opposition. According to the California State Sheriffs’ Association (CSSA), “We share your intent that sexual assaults are investigated and perpetrators not go unpunished. In 2014, CSSA worked with Assembly Member Nancy Skinner to amend her AB 1517 into a final product that will help achieve those goals without being overly burdensome. However, by requiring law enforcement agencies to provide statistics to DOJ, AB 1848 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel.
7. Related Legislation:
   1. AB 909 (Quirk), would have required a law enforcement agency responsible for taking or processing rape kit evidence to annually report, by July 1 of each year, to the Department of Justice information pertaining to the processing of rape kits, including the number of rape kits the law enforcement agency collects, the number of those rape kits that are tested, and the number of those rape kits that are not tested. For those rape kits that are not tested, the bill would require the law enforcement agency to also report the reason the rape kit was not tested. This bill was held on the Senate Appropriations Suspense file.
   2. AB 2499 (Maienschein), updates the SAFE-T database to allow victims of sexual assault to have secure access to the location and information regarding their sexual assault evidence kits. This bill is also on today’s committee calendar.
8. Prior Legislation:
   1. AB 1517 (Skinner), Chapter 874, Statutes of 2014, encourages law enforcement agencies to submit sexual assault forensic evidence received by the agency to a crime lab within 20 days after it is booked into evidence, and ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault to a crime lab within 5 days after the evidence is obtained from the victim.
   2. AB 558 (Portantino), of the 2009-2010 session, would have required local law enforcement agencies responsible for taking or collecting rape kit evidence to annually report to the Department of Justice statistical information pertaining to the testing and submission for DNA analysis of rape kits. This bill was vetoed by Governor Schwarzenegger, who noted: .

“while this measure is well-intended, it continues to ignore the precarious fiscal conditions of California's crime laboratories… Unfortunately, AB 558 will not provide any additional funding or staffing for crime laboratories and will instead divert resources away from testing to sending reports to the Department of Justice. In this time of fiscal crisis, I cannot condone this shift in priorities.”

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Consultant: Matt Dean

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1848

Author:(Chiu) – As Amended Ver:

SUMMARY:

Requires local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking database (SAFE-T) on the disposition of all sexual assault evidence kits (rape kits) in their custody. Specifically, this bill:

1. Finds and declares that there is a significant public interest in knowing whether rape kits have been tested and if the kits have not been tested, the reasons why they were not tested.
   
2. Requires participation by law enforcement agencies in the SAFE-T database.
   
3. Requires law enforcement agencies, on a schedule set by the Department of Justice (DOJ) to submit via SAFE-T the:
   
   1. Number of rape kits collected during the set period,
      
   2. Number of kits where biological evidence was submitted to a DNA laboratory for analysis,
      
   3. Number of kits from which a DNA profile hit was generated, and
      
   4. Reasons why a particular rape kit was not submitted to a DNA laboratory for testing.
      
4. Requires DNA laboratories to enter into SAFE-T, every 120 days, and the reasons why any particular rape kit has not been tested.
   
5. States that SAFE-T shall not contain any identifying information about a victim or a suspect, any DNA profiles, or any information that would impair a pending criminal investigation.
   
6. Requires DOJ to report to the Legislature quarterly a summary of the information entered into SAFE-T.
   
7. States that, beside the required report to the Legislature, all contents of SAFE-T shall be confidential, and no law enforcement agency or laboratory may be compelled in a civil or criminal proceeding to disclose the contents of SAFE-T unless the contents contain exculpatory evidence for a criminal defendant.
   
8. Finds and declares that it is necessary to keep SAFE-T’s contents confidential in order to protect victims of crime.

EXISTING LAW:

1. Requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit deoxyribonucleic acid (DNA) samples. (Pen. Code, § 296.)
   
2. Establishes the DNA and Forensic Identification Database and Data Bank Program to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children. (Pen. Code, §§ 295, 295.1.)
   
3. Encourages DNA analysis of rape kits within the statute of limitations, which states that a criminal complaint must be filed within one year after the identification of the suspect by DNA evidence, and that DNA evidence must be analyzed within two years of the offense for which it was collected. (Pen. Code, § 680, subd. (b)(6).)
   
4. Encourages law enforcement agencies to submit rape kits to crime labs within 20 days after the kit is booked into evidence. (Pen. Code, § 680, subd. (b)(7)(A)(i).)
5. Encourages the establishment of rapid turnaround DNA programs, where the rape kit is sent directly from the facility where it was collected to the lab for testing within five days. (Pen. Code, § 680, subds. (b)(7)(A)(ii) and (E).)
   
6. Encourages crime labs to do one of the following:
   
   1. Process rape kits, create DNA profiles when possible, and upload qualifying DNA profiles into CODIS within 120 days of receipt of the rape kit; or
      
   2. Transmit the rape kit to another crime lab within 30 days to create a DNA profile, and then upload the profile into CODIS within 30 days of being notified about the presence of DNA. (Pen. Code, § 680, subd. (b)(7)(B).)
      
7. Requires law enforcement agencies to inform victims in writing if they intend to destroy a rape kit 60 days prior to the destruction of the rape kit, when the case is unsolved and the statute of limitations has not run. (Pen. Code, §§ 680, subds. (e) and (f), 803.)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "When tested, DNA evidence can be an incredibly powerful tool to solve and prevent crime. It can identify an unknown assailant and confirm the presence of a known suspect. It can affirm the survivor's account of the attack and discredit the suspect. It can connect the suspect to other crime scenes. It can exonerate innocent suspects.
   
   “However, as we’ve seen over the past few years, there has been widespread mismanagement of DNA evidence in sexual assault cases in many jurisdictions. Survivors of sexual assault who are submitting sexual assault evidence kits aren’t getting the answers they need and deserve.
   
   “To accomplish these things, however, rape kits must be tested. Right now, some kits are analyzed, but a vast majority is not. In California, we know there is a backlog of over 6,100 kits - but we don’t know how long they’ve been sitting on the shelf, or if there were or were not legitimate reasons why they were not tested.
   
   “Currently, there is no comprehensive data on how many rape kits are collected and the reasons why kits are not tested. To get at the crux of the backlog problem, we need to know how many kits are collected each year, and if they’re not analyzed, we need to know why.
   
   “AB 1848 aims to solve this problem by directing law enforcement agencies to track how many sexual assault evidence kits they collect and the number of kits they analyze each year, and further directing agencies to report annually to DOJ their reasons for not analyzing sexual assault evidence kits.
   
   “Data and transparency are a necessary part of the solution. The data collected through AB 1848 could help policy makers consider whether law enforcement agencies’ current approaches in this area need to change or whether or not law enforcement needs additional resources to better manage the processing of these kits.”
   
2. CODIS and SAFE-T: According to background submitted by the author, “The local law enforcement investigator may request that a crime lab analyze the sexual assault evidence kit to try to match the DNA profile to a suspect in the investigation. The lab can then upload the profile to the combined DNA Index System (CODIS), a network of local, state, and federal databases that allows law enforcement agencies to test DNA profiles against one another. Through this process, labs will sometimes obtain the name of a previously unknown suspect or match multiple cases where the suspect remains unknown.
   

“The value of DNA evidence in the investigation and prosecution of sexual assault crimes makes these evidence kits critical for law enforcement.

“Even in instances where the identity of assailants is known, forensic analysis often helps identify repeat offenders. However, there is no state or federal law that requires agencies to request analysis of every sexual assault evidence kit.”

SAFE-T was created by DOJ in 2015 in part to help track how many rape kits were not being tested and why, to help determine the scope of the problem and to determine if mandatory testing may lead to the apprehension of more repeat offenders or the exoneration of more criminal defendants.

1. Tracking of Rape Kit Tests: A recent report by the California State Auditor found that law enforcement agencies rarely document reasons for not analyzing sexual assault evidence kits. (California State Auditor, Sexual Assault Evidence Kits (Oct. 2014).) <https://www.bsa.ca.gov/pdfs/reports/2014-109.pdf> Specifically, the report found that "[i]n 45 cases . . . reviewed in which investigators at the three agencies we visited did not request a kit analysis, the investigators rarely documented their decisions. As a result, we often could not determine with certainty why investigators decided that kit analysis was not needed. Among the 15 cases we reviewed at each of the three locations, we found no examples of this documentation at either the Sacramento Sheriff or the San Diego Police Department, and we found only six documented explanations at the Oakland Police Department. Investigative supervisors at both the Sacramento Sheriff and the San Diego Police Department indicated that their departments do not require investigators to document a decision not to analyze a sexual assault evidence kit. The lieutenant at the Oakland Police Department’s Special Victims Section stated that, during the period covered by our review, the section expected such documentation from its investigators in certain circumstances, but that it was not a formal requirement at that time." (Id. at p. 23.)

Upon a more in-depth review of the individual cases, the report found that analysis of the kits would not have been likely to further the investigation of those cases. The "decisions not to request sexual assault evidence kit analysis in the individual cases we reviewed appeared reasonable because kit analysis would be unlikely to further the investigation of those cases. We reviewed specific cases at each agency in which investigators did not request analysis. Our review included 15 cases from each of the three agencies we visited with offenses that occurred from 2011 through 2013, for a total of 45 cases. In those cases, we did not identify any negative effects on the investigations as a result of decisions not to request analysis. We based our conclusions on the circumstances present in the individual cases we reviewed, as documented in the files for the 45 cases and as discussed with the investigative supervisors." (Id. at p. 21.)

Even though the individual reasons for not testing the kits was found to be reasonable, the report still stressed the need for more information about why agencies decide to send some kits but not others. It would benefit not only investigators, but the public as well, because requiring investigators to document their reasons for not requesting kit analysis would assist agencies in responding to the public concern about unanalyzed kits. Doing so would allow for internal review and would increase accountability to the public. (Id. at pp. 23-24.)

1. Argument in Support: According to Attorney General Kamala Harris, “There is no doubt that forensic evidence is one of the most powerful investigatory tools made available to law enforcement in the last century. Analysis of DNA collected at crime scenes can dramatically enhance investigations into previously unsolvable cases, and this technology has led to countless more offenders held accountable. However, when a crime scene is the body of a woman who has been sexually assaulted, the collection of this evidence often comes at the cost of significant retraumatization. Forensic examination using what is referred to as a 'rape kit' typically involves a number of highly invasive procedures and can last several hours. This process is nevertheless worthwhile when it helps bring justice to the victim.
   
   "Recent years have seen a loudening outcry over a so-called 'rape kit backlog' in California and nationwide – allegations that many sexual assault evidence kits, possibly thousands, remain untested. There is no doubt that when evidence that could lead to the identification of an unknown assailant goes unanalyzed without good cause, some miscarriage of justice has occurred. At the same time, there are myriad reasons why a local agency a sample may not be tested—many of which may well be legitimate—including resource limitations and decisions made as part of the prosecutorial process. In order to effectively address any perceived epidemic unanalyzed kits, we must better understand the reasons why kits are not tested.
   
   "A 2014 report by the California State Auditor into this issue identified two critical areas where data is severely lacking within the state: First, 'no comprehensive information is currently available about the number of sexual assault evidence kits that local law enforcement agencies collect annually or how many of those kits are analyzed.' Second, 'no comprehensive data exist about the reasons some sexual assault evidence kits in California are not analyzed.'
   
   "In response to this audit, the Attorney General’s Bureau of Forensic Services affirmatively created what is known as the Sexual Assault Forensic Evidence Tracking (SAFE-T) system, which allows for the collection of precisely this information. However, there is no requirement that the system be utilized by local law enforcement.
   
   "AB 1848 will enable state lawmakers to bring data-driven solutions to a highly emotional issue. The bill would simply direct local agencies to report to the California Department of Justice how many kits they collect, and how many they analyze. In addition, agencies would be required to provide the state with vital information on why kits are not submitted to labs or analyzed. The Attorney General would regularly report on this information to the Legislature, providing meaningful illumination to the realities of sexual assault investigations.
   
   "The Attorney General is proud to support of AB 1848 as a continuation of her long history of working in support of forensic analysis. In 2012, this office announced that the backlog of untested DNA evidence in state labs had been eliminated for the first time ever; since then, our Bureau of Forensic Services has assisted counties in clearing their own backlogs. In 2014, the Attorney General’s innovative RADS program received the United States Department of Justice’s Award for Professional Innovation in Victim Services, and in 2015 the program was awarded a $1.6 million grant to test sexual assault evidence kits at local laboratories.”
2. Argument in Opposition: According to the California State Sheriffs’ Association, “We share your intent that sexual assaults are investigated and perpetrators not go unpunished. In 2014, CSSA worked with Assembly Member Nancy Skinner to amend her AB 1517 into a final product that will help achieve those goals without being overly burdensome. However, by requiring law enforcement agencies to provide statistics to DOJ, AB 1848 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel.
   
   “Existing law permits law enforcement to notify a victim about the status of his or her rape kit upon the victim’s request as well as requires law enforcement to notify a victim if his or her rape kit is going to be disposed or not tested. We do not feel that this balanced approach requires alteration.
   
   “Local law enforcement agencies are still dealing with the effects of significant budget cuts over the last several years while trying to maintain critical services. Adding an additional reporting requirement would divert limited resources away from providing current services.”
3. Related Legislation:
   1. AB 909 (Quirk), would require a law enforcement agency responsible for taking or processing rape kit evidence to annually report, by July 1 of each year, to the Department of Justice information pertaining to the processing of rape kits, including the number of rape kits the law enforcement agency collects, the number of those rape kits that are tested, and the number of those rape kits that are not tested. For those rape kits that are not tested, the bill would require the law enforcement agency to also report the reason the rape kit was not tested. This bill is being held under submission in the Assembly Committee on Appropriations.
   2. AB 2499 (Maienschein), would update the SAFE-T database to allow victims of sexual assault to have secure access to the location and information regarding their sexual assault evidence kits. This bill has been set for hearing in the Assembly Committee on Public Safety for April 12, 2016.
4. Prior Legislation:
   1. AB 1517 (Skinner), Chapter 874, Statutes of 2014, encourages law enforcement agencies to submit sexual assault forensic evidence received by the agency to a crime lab within 20 days after it is booked into evidence, and ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault to a crime lab within 5 days after the evidence is obtained from the victim.
      
   2. AB 558 (Portantino), of the 2009 2010, would have required local law enforcement agencies responsible for taking or collecting rape kit evidence to annually report to the Department of Justice statistical information pertaining to the testing and submission for DNA analysis of rape kits. This bill was vetoed by Governor Schwarzenegger.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Department of Justice (Sponsor)

Alameda County District Attorney's Office

California Coalition Against Sexual Assault
California Partnership to End Domestic Violence

National Council of Jewish Women - California

Planned Parenthood Affiliates of California

Opposition

California State Sheriff’s Association

Analysis Prepared by:

Matt Dean / PUB. S. / (916) 319-3744