Existing law, the Sexual Assault Victims DNA Bill of Rights, authorizes a law enforcement agency investigating certain felony sex offenses, upon the request of the victim, and subject to the commitment of sufficient resources, to inform the victim whether a DNA profile was obtained from the testing of the rape kit evidence or other crime scene evidence from the case, whether that information has been entered into the Department of Justice Data Bank of case evidence, and whether there is a match between the DNA profile developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base. Existing law also requires that the victim be given written notification by the law enforcement agency if the law enforcement agency elects not to perform DNA testing of the rape kit evidence or other crime scene evidence, or intends to destroy or dispose of the rape kit evidence or other crime scene evidence prior to the expiration of the statute of limitations. Existing law provides that the sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under the Sexual Assault Victims DNA Bill of Rights is standing to file a writ of mandamus to require compliance with these notification provisions.

This bill 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. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program.

The bill would require, beginning January 1, 2017, and each January 1 after that date, the Department of Justice to submit a report to the appropriate policy committees of the Legislature summarizing the information the department receives pursuant to these provisions.

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.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 909 (Quirk) - Sexual assault crimes

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

Bill Summary:

AB 909 would require law enforcement agencies responsible for taking or processing rape kit evidence to annually report specified information to the Department of Justice (DOJ), as specified. This bill would also require the DOJ to annually submit a report to the Legislature summarizing the information collected.

Fiscal Impact:

• Potential workload costs in excess of $50,000 (Special Fund*) for the DOJ to collect/compile the data to the extent the information is not submitted electronically.

• One-time and ongoing state-reimbursable local costs, potentially in excess of several hundred thousand dollars (General Fund) per year, for local law enforcement agencies to track and report the information to the DOJ. 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.

• Minor ongoing workload and costs to the California Highway Patrol (CHP) and the Department of Corrections and Rehabilitation (CDCR) for annual reporting of DNA evidence collected.

*DNA Identification Fund

Background:

Existing law 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:

• Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or

• 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.

Existing law also specifies timelines a crime lab should follow for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.

Proposed Law:

This bill would require law enforcement agencies responsible for taking or processing rape kit evidence to annually report by July 1 of each year, all of the following information to the DOJ:

• The number of rape kits the law enforcement agency collects.

• The number of rape kits the law enforcement agency collects that are tested.

• The number of rape kits the law enforcement agency collects that are not tested.

• For a rape kit collected and not tested, the reason the rape kit was not tested.

This bill also requires the DOJ, commencing January 1, 2017, and each January 1 thereafter, to submit a report to the appropriate policy committees of the Legislature summarizing the information above received from law enforcement agencies.

Related Legislation:

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

AB 322 (Portantino) 2011 would have created a pilot project, commencing July 1, 2012, in 10 counties to have the DOJ test all rape kits collected after the start date of the pilot project in those counties to determine if such testing increases their arrest rates in rape cases. This bill was vetoed by the Governor.

AB 558 (Portantino) 2010 would have required law enforcement agencies that take or collect rape kit evidence to annually report specified information concerning the testing and destruction of that evidence to the DOJ. This bill was vetoed by the Governor with the following message:

This bill is similar to AB 1017 (2009), which I also vetoed. Unfortunately, while this measure is well-intended, it continues to ignore the precarious fiscal conditions of California's crime laboratories. Indeed, as noted by the California Crime Laboratory Review Task Force in its 2009 report, DNA, fingerprints, and firearms testing have been identified as areas where requests often exceed staffing capabilities. The Task Force also noted that in order to eliminate the backlog for DNA testing, an additional 282 analysts would have to be funded. 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. 

AB 1017 (Portantino) 2009 would have required law enforcement agencies that take or collect rape kit evidence to annually report specified information concerning the testing and destruction of that evidence to the DOJ. This bill was also vetoed by the Governor.

Staff Comments:

By requiring law enforcement agencies responsible for taking or processing rape kit evidence to report annually 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. To the extent local agencies additionally require the development of a central database and other system enhancements to collect, track, and report the information, these one-time and ongoing costs for maintenance and operations could also be significant.

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

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 909 Hearing Date: June 23, 2015

Subject: Sexual Assault Crimes

HISTORY

Source: Unknown

Prior Legislation: AB 1517 (Skinner) – Chapter 874, Statutes of 2014

SB 978 (DeSaulnier) – Chapter 136, Statutes of 2014

AB 322 (Portantino) – vetoed by Governor, 2011-12

AB 558 (Portantino) – vetoed by Governor, 2009-10

AB 1017 (Portantino) – vetoed by Governor, 2009-10

Support: National Association of Social Workers

Opposition: California State Sheriffs’ Association

Assembly Floor Vote: 77 - 0

PURPOSE

The purpose of this bill is to require: 1) law enforcement agencies responsible for taking or processing rape kit evidence to annually report to the Department of Justice (DOJ) specified information pertaining to the processing of rape kits; and 2) DOJ to submit a report to the appropriate policy committees of the Legislature summarizing the information DOJ receives, as specified.

Existing law establishes the Sexual Assault Victims’ DNA Bill of Rights which provides victims of sexual assault with the following rights:

• The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case;
  
  

• The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into DOJ Data Bank of case evidence; and,
  
  

• The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.

(Penal Code § 680(c)(2).)

Existing law states the Legislative finding that law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases. (Penal Code § 680(b)(4).)

Existing law 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:

• Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or
  
  

• 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.

(Penal Code § 680(b)(7)(A).)

Existing law specifies that the crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:

• Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) as soon as practically possible, but not later than 120 days after initially receiving the evidence; or
  
  

• Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no later than 30 days after being notified about the presence of DNA.

(Penal Code § 680(b)(7)(B).)

Existing law provides that the above provisions establishing timelines for testing DNA do not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines set forth in those provisions when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator. (Penal Code § 680(b)(7)(C).)

Existing law defines “rapid turnaround DNA program” as a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. (Penal Code § 680(b)(7)(E).)

Existing law states if the law enforcement agency elects not to analyze DNA evidence within 6 months prior to the established time limits, a victim of a sexual assault offense as specified, shall be informed, either orally or in writing, of that fact by the law enforcement agency. (Penal Code § 680(d).)

Existing law states notwithstanding any other limitation of time described, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing, if both of the following conditions are met:

• The crime is one that requires the defendant to register as a sex offender; and,

• The offense was committed prior to January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than January 1, 2004, or the offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years from the date of the offense.

(Penal Code § 803(g)(1).)

This bill requires a law enforcement agency responsible for taking or processing rape kit evidence to annually report, by July 1 of each year, the following information to the Department of Justice:

• The number of rape kits the law enforcement agency collects;

• The number of rape kits the law enforcement agency collects that are tested; and
  
  
  

• The number of rape kits the law enforcement agency collects that are not tested and the reason the rape kit was not tested.
  
  
  

This bill requires, beginning January 1, 2017, and each January 1 after that date, DOJ to submit a report to the appropriate policy committees of the Legislature summarizing the information DOJ receives pursuant to the provisions in this bill.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight 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 February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.” ( Defendants’ February 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).

While significant gains have been made in reducing the prison population, the state now 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 Legislation

According to the Author:

Over the last several years, hundreds of thousands of unanalyzed rape kits have been discovered nationwide. In response, several states have passed legislation that sets timelines for analyzing the kits in a timely manner. Others passed measures to track and report rape kits.

An October 2014 California State Auditor report highlighted the pressing need for California to more adequately track and report rape kits and recommended that law enforcement agencies report this information annually.

Tracking and reporting rape kits is essential to fully understanding why investigators choose to send some kits to be analyzed and not others. It is essential to understand how large the backlog really is in order to tackle the problem effectively.

Law enforcement agencies are not required to track or report the number of rape kits they collect or how many go unanalyzed. Further, investigators are not required to document their reasons for not submitting a rape kit to be tested. Due to the lack of tracking and reporting requirements, the total number of unanalyzed kits statewide is unknown. The unknown number of unanalyzed kits that are sitting in evidence rooms across the state allow perpetrators to walk free and deprive victims of justice.

AB 909 will require local law enforcement agencies to track and report on the number of rape kits they collect, test and how many go untested. For untested rape kits, law enforcement agencies will be required to document the reason for not submitting the kit to be tested. Law enforcement agencies will also be required to submit this information to the Department of Justice annually.

2. Effect of Legislation

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 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:

Law enforcement 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 21.)

Even though the individual reasons for not testing the kits were found to be reasonable, the report still stressed the need for more information about why agencies decide to send some kits but not others because tracking this information would allow for internal review and would increase accountability to the public. (Id. at 23-24.)

Specifically, the report recommended the Legislature:

Direct law enforcement agencies to report to Justice annually how many sexual assault evidence kits they collect and the number of kits they analyze each year. The Legislature should also direct law enforcement 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. (Id. at 4.)

This legislation implements this recommendation by requiring 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: (1) the number of rape kits the law enforcement agency collects; (2) the number of rape kits the law enforcement agency collects that are tested; and, (3) the number of rape kits the law enforcement agency collects that are not tested and the reason the rape kit was not tested. This legislation, additionally, requires DOJ to prepare an annual report for the legislature.

3. Previous Legislation

AB 558 (Portantino) and AB 1017 (Portantino), of the 2009-10 Legislative 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, and would have made the reports subject to inspection under the California Public Records Act. AB 558 and AB 1017 were both vetoed. The AB 555 veto message stated:

This bill is similar to AB 1017 (2009), which I also vetoed. Unfortunately, while this measure is well-intended, it continues to ignore the precarious fiscal conditions of California's crime laboratories. Indeed, as noted by the California Crime Laboratory Review Task Force in its 2009 report, DNA, fingerprints, and firearms testing have been identified as areas where requests often exceed staffing capabilities. The Task Force also noted that in order to eliminate the backlog for DNA testing, an additional 282 analysts would have to be funded. 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.

4. Argument in Support

The National Association of Social Workers, California Chapter, supports AB 909:

[W]hich will require local law enforcement agencies to track and report on the number of rape kits they collect, how many they test and how many go untested. For untested rape kits, law enforcement agencies will be required to document the reason for not submitting the kit to be tested. Law enforcement agencies will also be required to submit this information to the DOJ by July 1 of each year. This measure will also require the DOJ to submit an annual report to the appropriate legislative committees beginning January 1, 2017.

Currently law enforcement agencies are not required to track or report information about the number of rape kits they collect or how many go unanalyzed. Further, investigators are not required to document their reasons for not submitting a rape kit to be tested. Due to the lack of tracking and reporting requirements, the total number of unanalyzed kits statewide is unknown. The unknown number of unanalyzed kits that are sitting in evidence rooms across the state allow perpetrators to walk free and deprive victims of justice.

5. Argument in Opposition

According to the California State Sheriffs’ Association,

By requiring law enforcement agencies to provide statistics to DOJ, AB 909 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel. Doing so could inadvertently hamper our ability to process these kits.

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.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 909

Author:(Quirk)

As Introduced Ver:February 26, 2015

Majority vote

SUMMARY:

Requires law enforcement agencies responsible for taking or processing rape kit evidence to annually report to the Department of Justice (DOJ) specified information pertaining to the processing of rape kits. Specifically, this bill:

1. Provides that a law enforcement agency responsible for taking or processing rape kit evidence shall annually report, by July 1 of each year, all of the following information to the DOJ:

   1. The number of rape kits the law enforcement agency collects;

   2. The number of rape kits the law enforcement agency collects that are tested; and

   3. The number of rape kits the law enforcement agency collects that are not tested and the reason the rape kit was not tested.

2. Requires, beginning January 1, 2017, and each January 1st after that date, DOJ to submit a report to the appropriate policy committees of the Legislature summarizing the information DOJ receives pursuant to the provisions in this bill.

3. States that the report shall be submitted in compliance with requirements in existing statutes relating to submission of reports by state or local agencies.

EXISTING LAW:

1. Establishes the Sexual Assault Victims' DNA Bill of Rights which provides victims of sexual assault with the following rights:

   1. The right to be informed whether or not a deoxyribonucleic acid (DNA) profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case;

   2. The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into DOJ Data Bank of case evidence; and

   3. The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.

2. States the Legislative finding that law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.

3. 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:

   1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or

   2. 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.

4. Specifies that the crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:

   1. Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) as soon as practically possible, but not later than 120 days after initially receiving the evidence; or

   2. Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no later than 30 days after being notified about the presence of DNA.

5. Provides that the above provisions establishing timelines for testing DNA do not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines set forth in those provisions when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.

6. Defines "rapid turnaround DNA program" as a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.

7. States if the law enforcement agency elects not to analyze DNA evidence within six months prior to the established time limits, a victim of a sexual assault offense as specified, shall be informed, either orally or in writing, of that fact by the law enforcement agency.

8. States notwithstanding any other limitation of time described, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing, if both of the following conditions are met:

   1. The crime is one that requires the defendant to register as a sex offender; and

   2. The offense was committed prior to January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than January 1, 2004, or the offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years from the date of the offense.

FISCAL EFFECT:

According to the Assembly Appropriations Committee:

1. Moderate reimbursable mandated local costs for providing the information to the DOJ in excess of $150,000 (General Fund), if more than 30 agencies submit claims in excess of $5,000 annually. Reporting the reason why a rape kit was not tested will be more resource intensive than providing statistical data.

2. Minor annual absorbable costs to the DOJ for compiling the data and submitting the annual report.

COMMENTS:

According to the author, "Over the last several years, hundreds of thousands of unanalyzed rape kits have been discovered nationwide. In response, several states have passed legislation that sets timelines for analyzing the kits in a timely manner. Others passed measures to track and report rape kits.

"An October 2014 California State Auditor report highlighted the pressing need for California to more adequately track and report rape kits and recommended that law enforcement agencies report this information annually.

"Tracking and reporting rape kits is essential to fully understanding why investigators choose to send some kits to be analyzed and not others. It is essential to understand how large the backlog really is in order to tackle the problem effectively.

"Law enforcement agencies are not required to track or report the number of rape kits they collect or how many go unanalyzed. Further, investigators are not required to document their reasons for not submitting a rape kit to be tested. Due to the lack of tracking and reporting requirements, the total number of unanalyzed kits statewide is unknown. The unknown number of unanalyzed kits that are sitting in evidence rooms across the state allow perpetrators to walk free and deprive victims of justice.

"AB 909 will require local law enforcement agencies to track and report on the number of rape kits they collect, test and how many go untested. For untested rape kits, law enforcement agencies will be required to document the reason for not submitting the kit to be tested. Law enforcement agencies will also be required to submit this information to the Department of Justice annually."

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0000657

Date of Hearing: April 29, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 909

Author:(Quirk) – As Introduced Ver:February 26, 2015

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

SUMMARY:

This bill requires law enforcement agencies responsible for taking or processing rape kit evidence to annually report to the Department of Justice (DOJ) specified information pertaining to the processing of rape kits. Specifically, this bill:

1. Provides that a law enforcement agency responsible for taking or processing rape kit evidence shall annually report, by July 1 of each year, all specified information to the DOJ regarding rape kits the law enforcement agency collects.

2. Requires DOJ, beginning January 1, 2017, and each January 1 after, to submit a report to the appropriate policy committees of the Legislature summarizing the information DOJ receives pursuant to this bill.
   
   

FISCAL EFFECT:

1. Moderate reimbursable mandated local costs for providing the information to the DOJ in excess of $150,000 (GF), if more than 30 agencies submit claims in excess of $5,000 annually. Reporting the reason why a rape kit was not tested will be more resource intensive than providing statistical data.

2. Minor annual absorbable costs to the DOJ for compiling the data and submitting the annual report.

COMMENTS:

1. Background. Current law 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:
   
   

   1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or
      
      

   2. 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 also specifies timelines a crime lab should follow for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.

2. Purpose. According to the author, "Over the last several years, hundreds of thousands of unanalyzed rape kits have been discovered nationwide. In response, several states have passed legislation that sets timelines for analyzing the kits in a timely manner. Others passed measures to track and report rape kits.

"An October 2014 California State Auditor report highlighted the pressing need for California to more adequately track and report rape kits and recommended that law enforcement agencies report this information annually.

"Tracking and reporting rape kits is essential to fully understanding why investigators choose to send some kits to be analyzed and not others. It is essential to understand how large the backlog really is in order to tackle the problem effectively.

"AB 909 will require local law enforcement agencies to track and report on the number of rape kits they collect, test and how many go untested. For untested rape kits, law enforcement agencies will be required to document the reason for not submitting the kit to be tested. Law enforcement agencies will also be required to submit this information to the Department of Justice annually."

3. Argument in Support. The National Association of Social Workers, California Chapter, in support of AB 909, states "currently law enforcement agencies are not required to track or report information about the number of rape kits they collect or how many go unanalyzed. Due to the lack of tracking and reporting requirements, the total number of unanalyzed kits statewide is unknown. The unknown number of unanalyzed kits allow perpetrators to walk free and deprive victims of justice."

4. Argument in Opposition: According to the California State Sheriffs' Association, "By requiring law enforcement agencies to provide statistics to DOJ, AB 909 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel. Doing so could inadvertently hamper our ability to process these kits.
   
   "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."
   
   

5. Prior Legislation:
   
   

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

   2. SB 978 (DeSaulnier), Chapter 136, Statutes of 2014, allows the hospital to notify the local rape victim counseling center when the victim is presented to the hospital for the medical or evidentiary physical examination, upon approval of the victim.
      
      

   3. AB 322 (Portantino), of the 2011-12 Legislative Session, would have created a pilot project, commencing July 1, 2012 and ending on January 1, 2016, in 10 counties to have DOJ test all rape kits collected after the start date of the pilot project in those counties to determine if such testing increases their arrest rates in rape cases. AB 322 was vetoed, the Governor did not want to mandate participation on the 10 counties identified.
      
      

   4. AB 558 (Portantino), of the 2009-10 Legislative Session, would have required local law enforcement agencies responsible for taking or collecting rape kit evidence to annually report to the DOJ statistical information pertaining to the testing and submission for DNA analysis of rape kits, and would have made the reports subject to inspection under the California Public Records Act. AB 558 was vetoed, the Governor cited the precarious fiscal conditions of crime laboratories.
      
      

   5. AB 1017 (Portantino), of the 2009-10 Legislative Session, would have required that beginning July 1, 2012, and annually thereafter until July 1, 2016, each local law enforcement agency responsible for taking or collecting rape kit evidence shall annually report to the DOJ various statistical information pertaining to the testing and submission for DNA analysis of rape kits, as specified. AB 1017 was vetoed, the Governor cited concerns over local costs and diversion of scare resources to comply with the provisions of this bill, and pointed out DOJ was not required to do anything with the additional data.

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

Date of Hearing: April 14, 2015

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 909

Author:(Quirk) – As Introduced Ver:February 26, 2015

SUMMARY:

Requires law enforcement agencies responsible for taking or processing rape kit evidence to annually report to the Department of Justice (DOJ) specified information pertaining to the processing of rape kits. Specifically, this bill:

1. Provides that a law enforcement agency responsible for taking or processing rape kit evidence shall annually report, by July 1 of each year, all of the following information to the Department of Justice:
   
   

   1. The number of rape kits the law enforcement agency collects;

2. The number of rape kits the law enforcement agency collects that are tested; and
   
   

3. The number of rape kits the law enforcement agency collects that are not tested and the reason the rape kit was not tested.
   
   

1. Requires, beginning January 1, 2017, and each January 1 after that date, DOJ to submit a report to the appropriate policy committees of the Legislature summarizing the information DOJ receives pursuant to the provisions in this bill.
   
   

2. States that the report shall be submitted in compliance with requirements in existing statutes relating to submission of reports by state or local agencies.

EXISTING LAW:

1. Establishes the Sexual Assault Victims' DNA Bill of Rights which provides victims of sexual assault with the following rights:

1. The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case;
   
   

2. The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into DOJ Data Bank of case evidence; and
   
   

3. The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. (Pen. Code, § 680, subd. (c)(2).)

1. States the Legislative finding that law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases. (Pen. Code, § 680, subd. (b)(4).)
   
   

2. 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:
   
   

   1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or
      
      

   2. 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. (Pen. Code, § 680, subd. (b)(7)(A).)

4. Specifies that the crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:
   
   

   1. Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) as soon as practically possible, but not later than 120 days after initially receiving the evidence; or
      
      

   2. Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no later than 30 days after being notified about the presence of DNA. (Pen. Code, § 680, subd. (b)(7)(B).)
      
      

5. Provides that the above provisions establishing timelines for testing DNA do not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines set forth in those provisions when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator. (Pen. Code, § 680, subd. (b)(7)(C).)
   
   

6. Defines "rapid turnaround DNA program" as a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. (Pen. Code, § 680, subd. (b)(7)(E).)
   
   

7. States if the law enforcement agency elects not to analyze DNA evidence within 6 months prior to the established time limits, a victim of a sexual assault offense as specified, shall be informed, either orally or in writing, of that fact by the law enforcement agency. (Pen. Code, § 680, subd. (d).)

8. States notwithstanding any other limitation of time described, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing, if both of the following conditions are met:

1. The crime is one that requires the defendant to register as a sex offender; and

2. The offense was committed prior to January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than January 1, 2004, or the offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years from the date of the offense. (Pen. Code, § 803, subd. (g)(1).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Over the last several years, hundreds of thousands of unanalyzed rape kits have been discovered nationwide. In response, several states have passed legislation that sets timelines for analyzing the kits in a timely manner. Others passed measures to track and report rape kits.

"An October 2014 California State Auditor report highlighted the pressing need for California to more adequately track and report rape kits and recommended that law enforcement agencies report this information annually.

"Tracking and reporting rape kits is essential to fully understanding why investigators choose to send some kits to be analyzed and not others. It is essential to understand how large the backlog really is in order to tackle the problem effectively.

"Law enforcement agencies are not required to track or report the number of rape kits they collect or how many go unanalyzed. Further, investigators are not required to document their reasons for not submitting a rape kit to be tested. Due to the lack of tracking and reporting requirements, the total number of unanalyzed kits statewide is unknown. The unknown number of unanalyzed kits that are sitting in evidence rooms across the state allow perpetrators to walk free and deprive victims of justice.

"AB 909 will require local law enforcement agencies to track and report on the number of rape kits they collect, test and how many go untested. For untested rape kits, law enforcement agencies will be required to document the reason for not submitting the kit to be tested. Law enforcement agencies will also be required to submit this information to the Department of Justice annually."

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.)

Specifically, the report recommended the Legislature to "direct law enforcement agencies to report to Justice annually how many sexual assault evidence kits they collect and the number of kits they analyze each year. The Legislature should also direct law enforcement 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." (Id. at p. 4.)

3. Argument in Support: The National Association of Social Workers, California Chapter supports AB 909 "which will require local law enforcement agencies to track and report on the number of rape kits they collect, how many they test and how many go untested. For untested rape kits, law enforcement agencies will be required to document the reason for not submitting the kit to be tested. Law enforcement agencies will also be required to submit this information to the DOJ by July 1 of each year. This measure will also require the DOJ to submit an annual report to the appropriate legislative committees beginning January 1, 2017.
   
   "Currently law enforcement agencies are not required to track or report information about the number of rape kits they collect or how many go unanalyzed. Further, investigators are not required to document their reasons for not submitting a rape kit to be tested. Due to the lack of tracking and reporting requirements, the total number of unanalyzed kits statewide is unknown. The unknown number of unanalyzed kits that are sitting in evidence rooms across the state allow perpetrators to walk free and deprive victims of justice."
   
   

4. Argument in Opposition: According to the California State Sheriffs' Association, "By requiring law enforcement agencies to provide statistics to DOJ, AB 909 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel. Doing so could inadvertently hamper our ability to process these kits.
   
   "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."
   
   

5. Prior Legislation:
   
   

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

   2. SB 978 (DeSaulnier), Chapter 136, Statutes of 2014, allows the hospital to notify the local rape victim counseling center when the victim is presented to the hospital for the medical or evidentiary physical examination, upon approval of the victim.
      
      

   3. AB 322 (Portantino), of the 2011-12 Legislative Session, would have created a pilot project, commencing July 1, 2012 and ending on January 1, 2016, in 10 counties to have DOJ test all rape kits collected after the start date of the pilot project in those counties to determine if such testing increases their arrest rates in rape cases. AB 322 was vetoed.
      
      

   4. AB 558 (Portantino), of the 2009-10 Legislative 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, and would have made the reports subject to inspection under the California Public Records Act. AB 558 was vetoed.
      
      

   5. AB 1017 (Portantino), of the 2009-10 Legislative Session, would have required that beginning July 1, 2012, and annually thereafter until July 1, 2016, each local law enforcement agency responsible for taking or collecting rape kit evidence shall annually report to the DOJ various statistical information pertaining to the testing and submission for DNA analysis of rape kits, as specified. AB 1017 was vetoed.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California
California Women Lawyers
Crime Victims United
National Association of Social Workers – California Chapter

Opposition

California State Sheriffs' Association

Analysis Prepared by:

Stella Choe / PUB. S. / (916) 319-3744