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 ensure 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, within 120 days of the collection of the kit, to the Department of Justice through a database established by the department. The bill would require that information to include, among other things, whether biological evidence samples were submitted to a DNA laboratory for analysis and if 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. The bill would only impose these requirements for a kit collected on or after January 1, 2018. By imposing additional duties on local law enforcement, the bill would create a state-mandated local program. The bill would require that money received by the Office of Emergency Services from the federal Office on Violence Against Women be used before appropriating money from the General Fund for purposes of reimbursing any costs determined by the Commission on State Mandates to be mandated by the state to a local law enforcement agency by the bill.

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 ensure 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, within 120 days of the collection of the kit, to the Department of Justice through a database established by the department. The bill would require that information to include, among other things, whether biological evidence samples were submitted to a DNA laboratory for analysis and if 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. The bill would only impose these requirements for a kit collected on or after January 1, 2018. By imposing additional duties on local law enforcement, the bill would create a state-mandated local program. The bill would require that money received by the Office of Emergency Services from the federal Office on Violence Against Women be used before appropriating money from the General Fund for purposes of reimbursing any costs determined by the Commission on State Mandates to be mandated by the state to a local law enforcement agency by the bill.

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 ensure 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, within 120 days of the collection of the kit, to the Department of Justice through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, if whether biological evidence samples were submitted to a DNA laboratory for analysis, analysis and if 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. The bill would only impose these requirements for a kit collected on or after January 1, 2018. By imposing additional duties on local law enforcement, this the bill would create a state-mandated local program. The bill would require that money received by the Office of Emergency Services from the federal Office on Violence Against Women be used before appropriating money from the General Fund for purposes of reimbursing any costs determined by the Commission on State Mandates to be mandated by the state to a local law enforcement agency by the bill.

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 ensure 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, within 120 days of the collection of the kit, to the Department of Justice through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, if biological evidence samples were submitted to a DNA laboratory for analysis, and if 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. The bill would only impose these requirements for a kit collected on or after January 1, 2018. By imposing additional duties on local law enforcement, this bill would create a state-mandated local program. The bill would require that money received by the Office of Emergency Services from the federal Office on Violence Against Women be used before appropriating money from the General Fund for purposes of reimbursing any costs determined by the Commission on State Mandates to be mandated by the state to a local law enforcement agency by the bill.

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.

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 ensure 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, within 120 days of the collection of the kit, to the Department of Justice through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, if biological evidence samples were submitted to a DNA laboratory for analysis, and if 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. The bill would only impose these requirements for a kit collected on or after January 1, 2018. 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 for the need to make the contents of the database confidential.

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 ensure 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, within 120 days of the collection of the kit, to the Department of Justice through a database established by the department. The bill would require that information to include, among other things, the number of kits collected, if biological evidence samples were submitted to a DNA laboratory for analysis, and if 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. The bill would only impose these requirements for a kit collected on or after January 1, 2018. 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 for the need to make the contents of the database confidential.

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.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 41

Author:(Chiu)

As Amended Ver:September 8, 2017

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Requires 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.

The Senate amendments:

1. Require that eligible federal funds received by the Office of Emergency Services be used before appropriating money from the General Fund for purposes of reimbursing any costs to local law enforcement agencies determined to be mandated by the state.
2. Make technical, non-substantive changes.

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.
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 out.

AS PASSED BY THE ASSEMBLY, this bill:

1. Required law enforcement agencies to report information regarding rape kit evidence, within 120 days of the collection of the kit, to the Department of Justice (DOJ) through a database established by the DOJ. Specifies that information shall include, among other things:
   1. The number of kits collected;
   2. If biological evidence samples were submitted to a deoxyribonucleic acid (DNA) laboratory for analysis; and
   3. If a probative DNA profile was generated.
2. Required 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.
3. Imposed these requirements for kits collected on or after January 1, 2018.
4. Required that the DOJ file a report to the Legislature on an annual basis summarizing the information in its database.
5. Prohibited 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 agency's duty to produce exculpatory evidence to a defendant in a criminal case.
6. Found and declares the following:
   1. There is a significant public interest in knowing the percentage of rape kits that are analyzed to identify the perpetrator's DNA profile, as well as the reason for any untested rape kits not being analyzed. Currently, there is no mandatory statewide tracking mechanism 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; and
   2. 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.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. Local law enforcement agencies: Unknown, potentially-significant workload cost in excess of $100,000 annually statewide to local law enforcement agencies, likely state-reimbursable (local funds/federal funds/General Fund), related to collecting and reporting data and writing statements. There would be higher one-time costs initially for some agencies for equipment upgrades or purchases, depending on the agencies' current information collection and reporting systems. The magnitude of costs to each agency would be dependent on the number of kits, current tracking practices and capabilities, and how many kits are processed by private laboratories. Reporting the reason why a sexual assault evidence kit was not tested is presumed to be more resource intensive than providing only statistical data. Costs incurred across the 482 cities and 58 counties in California could vary widely.
2. 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.
3. CHP/CDCR: Minor ongoing workload and costs (Special Fund**/General Fund) for annual reporting of DNA evidence collected.

*DNA Identification Fund

**Motor Vehicle Account

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 41 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 41 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: 0002255

 THIRD READING  

Bill No: AB 41

Author:

Amended: 9/8/17 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/6/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 6-0, 9/1/17

AYES: Lara, Beall, Bradford, Hill, Nielsen, Wiener

NO VOTE RECORDED: Bates

ASSEMBLY FLOOR: 74-0, 4/27/17 - See last page for vote

SUBJECT:

SOURCE: Alameda County District Attorney

DIGEST:

This bill requires 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.

Senate Floor Amendments of 9/8/17 make a number of technical changes.

ANALYSIS:

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. (Penal 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. (Penal 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. (Penal Code, § 680 (b)(6).)
   
4. 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).)
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. (Penal Code § 680 (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. (Penal Code § 680 (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 out. (Penal Code §§ 680 (e) and (f), 803.)
   

This bill:

1. Requires law enforcement agencies to report information regarding rape kit evidence, within 120 days of the collection of the kit, to the Department of Justice (DOJ) through a database established by the DOJ. Specifies that information shall include, among other things:
   1. The number of kits collected;
   2. If biological evidence samples were submitted to a DNA laboratory for analysis; and If a probative DNA profile was generated.
2. Requires 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.
3. 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 the crime scene evidence pursuant to existing law, the agency shall state in writing the reason the kit collected as part of the case’s investigation was not analyzed.
4. Imposes these requirements for kits collected on or after January 1, 2018.
5. Requires that the DOJ file a report to the Legislature on an annual basis summarizing the information in its database.
6. Prohibits 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 agency’s duty to produce exculpatory evidence to a defendant in a criminal case.
7. Finds and declares the following:
   1. There is a significant public interest in knowing the percentage of rape kits that are analyzed to identify the perpetrator’s DNA profile, as well as the reason for any untested rape kits not being analyzed. Currently, there is no mandatory statewide tracking mechanism 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; and
   2. 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.
8. Provides that money to pay for this bill should first come from funds received from the federal Office on Violence Against Women before appropriating money from the general fund.

Background

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.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Local law enforcement agencies: Unknown, potentially-significant workload cost in excess of $100,000 annually statewide to local law enforcement agencies, likely state-reimbursable (local funds/federal funds/General Fund), related to collecting and reporting data and writing statements. There would be higher one-time costs initially for some agencies for equipment upgrades or purchases, depending on the agencies’ current information collection and reporting systems. The magnitude of costs to each agency would be dependent on the number of kits, current tracking practices and capabilities, and how many kits are processed by private laboratories. Reporting the reason why a sexual assault evidence kit was not tested is presumed to be more resource intensive than providing only statistical data. Costs incurred across the 482 cities and 58 counties in California could vary widely.
• 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

SUPPORT: (Verified 9/8/17)

Alameda County District Attorney (source)

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California District Attorneys Association

California Narcotic Officers Association

City and County of San Francisco, San Francisco Department on the Status of Women

Crime Victims United of California

Joyful Heart Foundation

Junior Leagues of California

Los Angeles County District Attorney’s Office

Los Angeles County Probation Officers Union AFSCME Local 685

Los Angeles Police Protective League

National Association of Social Workers, California Chapter

Riverside Sheriffs’ Association

Sheriff of San Francisco City and County

San Francisco District Attorney

Santa Barbara County District Attorney

Santa Clara District Attorney

OPPOSITION: (Verified 9/8/17)

California State Sheriffs’ Association

ARGUMENTS IN SUPPORT: According to the Alameda County District Attorney:

A 2014 report by the California State Auditor revealed that each year, thousands of sexual assault kits (SAKs) go unanalyzed by a DNA laboratory for a variety of reasons. I found in my own county, that we had a backlog of over 1,900 untested SAKs. The scope of the statewide SAK 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 SAKs with no explanation why they were not analyzed simply adds to the trauma ensured by survivors seeking justice. The value of DNA evidence in the investigation and prosecution of sexual assault crimes makes these SAK critical for law enforcement. Even in instances where the identity of the assailants is known, forensic analysis often helps identify repeat offenders.

AB 41 would require local agencies to track all SAKs collected from survivors by using SAFE-T in accordance with the State Auditor's recommendations. This improved tracking will help the prosecution of sexual assault cases and provide victims of sexual assault who reported a crime with information about their case that they deserve to know.

ARGUMENTS 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 then-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 the DOJ, AB 41 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 of or not tested. We do not feel that his 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.

ASSEMBLY FLOOR: 74-0, 4/27/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Calderon, Cervantes, Cooley, Gomez, McCarty, Santiago

Prepared by: Mary Kennedy / PUB. S. /

9/9/17 15:38:45

**** END ****

 THIRD READING  

Bill No: AB 41

Author:

Amended: 9/1/17 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/6/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 6-0, 9/1/17

AYES: Lara, Beall, Bradford, Hill, Nielsen, Wiener

NO VOTE RECORDED: Bates

ASSEMBLY FLOOR: 74-0, 4/27/17 - See last page for vote

SUBJECT:

SOURCE: Alameda County District Attorney

DIGEST:

This bill requires 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.

ANALYSIS:

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. (Penal 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. (Penal 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. (Penal Code, § 680 (b)(6).)
   
4. 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).)
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. (Penal Code § 680 (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. (Penal Code § 680 (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 out. (Penal Code §§ 680 (e) and (f), 803.)
   

This bill:

1. Requires law enforcement agencies to report information regarding rape kit evidence, within 120 days of the collection of the kit, to the Department of Justice (DOJ) through a database established by the DOJ. Specifies that information shall include, among other things:
   1. The number of kits collected;
   2. If biological evidence samples were submitted to a DNA laboratory for analysis; and If a probative DNA profile was generated.
2. Requires 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.
3. 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 the crime scene evidence pursuant to existing law, the agency shall state in writing the reason the kit collected as part of the case’s investigation was not analyzed.
4. Imposes these requirements for kits collected on or after January 1, 2018.
5. Requires that the DOJ file a report to the Legislature on an annual basis summarizing the information in its database.
6. Prohibits 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 agency’s duty to produce exculpatory evidence to a defendant in a criminal case.
7. Finds and declares the following:
   1. There is a significant public interest in knowing the percentage of rape kits that are analyzed to identify the perpetrator’s DNA profile, as well as the reason for any untested rape kits not being analyzed. Currently, there is no mandatory statewide tracking mechanism 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; and
   2. 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.
8. Provides that money to pay for this bill should first come from funds received from the federal Office on Violence Against Women before appropriating money from the general fund.

Background

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.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Local law enforcement agencies: Unknown, potentially-significant workload cost in excess of $100,000 annually statewide to local law enforcement agencies, likely state-reimbursable (local funds/federal funds/General Fund), related to collecting and reporting data and writing statements. There would be higher one-time costs initially for some agencies for equipment upgrades or purchases, depending on the agencies’ current information collection and reporting systems. The magnitude of costs to each agency would be dependent on the number of kits, current tracking practices and capabilities, and how many kits are processed by private laboratories. Reporting the reason why a sexual assault evidence kit was not tested is presumed to be more resource intensive than providing only statistical data. Costs incurred across the 482 cities and 58 counties in California could vary widely.
• 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

SUPPORT: (Verified 9/1//17)

Alameda County District Attorney (source)

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California District Attorneys Association

California Narcotic Officers Association

City and County of San Francisco, San Francisco Department on the Status of Women

Crime Victims United of California

Joyful Heart Foundation

Junior Leagues of California

Los Angeles County District Attorney’s Office

Los Angeles County Probation Officers Union AFSCME Local 685

Los Angeles Police Protective League

National Association of Social Workers, California Chapter

Riverside Sheriffs’ Association

Sheriff of San Francisco City and County

San Francisco District Attorney

Santa Barbara County District Attorney

Santa Clara District Attorney

OPPOSITION: (Verified 9/1//17)

California State Sheriffs’ Association

ARGUMENTS IN SUPPORT: According to the Alameda County District Attorney:

A 2014 report by the California State Auditor revealed that each year, thousands of sexual assault kits (SAKs) go unanalyzed by a DNA laboratory for a variety of reasons. I found in my own county, that we had a backlog of over 1,900 untested SAKs. The scope of the statewide SAK 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 SAKs with no explanation why they were not analyzed simply adds to the trauma ensured by survivors seeking justice. The value of DNA evidence in the investigation and prosecution of sexual assault crimes makes these SAK critical for law enforcement. Even in instances where the identity of the assailants is known, forensic analysis often helps identify repeat offenders.

AB 41 would require local agencies to track all SAKs collected from survivors by using SAFE-T in accordance with the State Auditor's recommendations. This improved tracking will help the prosecution of sexual assault cases and provide victims of sexual assault who reported a crime with information about their case that they deserve to know.

ARGUMENTS 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 then-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 the DOJ, AB 41 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 of or not tested. We do not feel that his 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.

ASSEMBLY FLOOR: 74-0, 4/27/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Calderon, Cervantes, Cooley, Gomez, McCarty, Santiago

Prepared by:

9/3/17 17:49:02

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 41 (Chiu) - DNA evidence

Bill Summary:

AB 41 would require law enforcement agencies to report specified information, and update such information, regarding the collection and processing of sexual assault kit evidence, as specified.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on September 1, 2017

Fiscal Impact:

• Local law enforcement agencies: Unknown, potentially-significant workload cost in excess of $100,000 annually statewide to local law enforcement agencies, likely state-reimbursable (local funds/federal funds/General Fund), related to collecting and reporting data and writing statements. There would be higher one-time costs initially for some agencies for equipment upgrades or purchases, depending on the agencies’ current information collection and reporting systems. The magnitude of costs to each agency would be dependent on the number of kits, current tracking practices and capabilities, and how many kits are processed by private laboratories. Reporting the reason why a sexual assault evidence kit was not tested is presumed 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

Author Amendments:

Add coauthors and renumber the Penal Code section.

Committee Amendments:

Require that eligible federal funds received by the Office of Emergency Services be used before appropriating money from the General Fund for purposes of reimbursing any costs to local law enforcement agencies determined to be mandated by the state.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 41 (Chiu) - DNA evidence

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

Bill Summary:

AB 41 would require law enforcement agencies to report specified information, and update such information, regarding the collection and processing of sexual assault kit evidence, as specified.

Fiscal Impact:

• Local law enforcement agencies: Unknown, potentially significant workload cost in excess of $100,000 annually statewide to local law enforcement agencies, likely state-reimbursable (General Fund/local funds), relating to collecting and reporting data and writing statements. There would be higher one-time costs initially for some agencies for equipment upgrades or purchases, depending on the agencies’ current information collection and reporting systems. The magnitude of costs to each agency would be dependent on the number of kits, current tracking practices and capabilities, and how many kits are processed by private laboratories. Reporting the reason why a sexual assault evidence kit was not tested is presumed 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 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, “[t]here is a significant public interest in knowing what percentage of rape kits are analyzed to identify the perpetrator’s DNA profile, as well as the reason for any untested rape kits not being 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 would:

• Require law enforcement agencies to report information regarding sexual assault evidence kits, within 120 days of the collection of the kit, to DOJ through a database established by the department.
• Require that information to include, among other things, the number of kits collected, if biological evidence samples were submitted to a DNA laboratory for analysis, and if a probative DNA profile was generated.
• 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.
• Impose these requirements for a kit collected on or after January 1, 2018.
• Require DOJ to file a report to the Legislature on an annual basis summarizing the information in its database.
• 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 agency’s duty to produce exculpatory evidence to a defendant in a criminal case.

Prior Legislation:

AB 1848 (Chiu, 2016) was substantially similar to this bill. AB 1848 was held on the Suspense File of this Committee.

AB 1517 (Skinner, Ch. 874, Stats. 2014) set timelines within which both law enforcement agencies and crime laboratories are to perform DNA testing of sexual assault kit evidence, as specified.

Staff Comments:

By requiring law enforcement agencies to report periodically into the SAFE-T database the progress of testing sexual assault evidence kits, this bill likely creates a state-mandated local program. The potential costs associated with this mandate are unknown, and would vary by jurisdiction. For less-populated jurisdictions, costs reported were generally in the low thousands of dollars. Based on a sampling of three police departments that serve cities that range in population from about 10,000 to 70,000 people, cost estimates range from $500 to $5,000 annually to comply with the requirements of this measure. For certain larger-population police departments, cost estimates are higher, approximately $30,000 to $45,000 annually, to perform the mandated functions. The costs difference is attributable largely to the hiring of new staff. In addition to great variation in the number of rape kits among cities and counties, local law enforcement agencies organize, store, log, and track assault kits differently. For cities and counties that have their evidence logs computerized, this bill requires a much smaller task than for those that do not. Additionally, while the workload involved to report the number of sexual assault evidence kits collected, tested, and untested may not be substantial, the workload required to document and report the reason for each kit that remains untested would be much more resource intensive.

It is presumed that all law enforcement entities, both local and state, would be subject to the data collection and reporting requirements of this bill. While statewide costs cannot be estimated with certainty for the 482 cities and 58 counties, 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 costs (in hardware and software purchases and/or upgrades) and ongoing workload and maintenance costs in excess of one hundred thousand dollars annually. To the extent the Commission on State Mandates determines that the requirements of this bill require a new or higher level of service on local jurisdictions, agencies could claim reimbursement of those costs from the General Fund. Staff notes that law enforcement agencies have the current ability to report information into the SAFE-T database. The voluntary reporting of this information does not require a state reimbursement of funds.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 41 Hearing Date: June 6, 2017

Subject: DNA Evidence

HISTORY

Source: Alameda County District Attorney

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

AB 322 (Portantino) Vetoed 2011

AB 558 (Portantino) Vetoed 2010

AB 1017 (Portantino) Vetoed 2009

Support: Association for Los Angeles Deputy Sheriffs; California College and University Police Chiefs Association; California District Attorneys Association; the California Narcotic Officers Association; City and County of San Francisco, San Francisco Department on the Status of Women; Crime Victims United of California; Joyful Heart Foundation; Junior Leagues of California; Los Angeles County District Attorney’s Office; Los Angeles County Probation Officers Union AFSCME Local 685; Los Angeles Police Protective League; National Association of Social Workers, California Chapter; Riverside Sheriffs’ Association; Sheriff of San Francisco City and County; San Francisco District Attorney; Santa Barbara County District Attorney; Santa Clara District Attorney

Opposition: California State Sheriffs’ Association

Assembly Floor Vote: 74 - 0

PURPOSE

The purpose of this bill is to 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.

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:

• 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
  
• 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 out. (Penal Code §§ 680 (e) and (f), 803.)

This bill requires law enforcement agencies to report information regarding rape kit evidence, within 120 days of the collection of the kit, to the Department of Justice (DOJ) through a database established by the DOJ. Specifies that information shall include, among other things:

• The number of kits collected;
• If biological evidence samples were submitted to a DNA laboratory for analysis; and
• If a probative DNA profile was generated.

This bill requires 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.

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 the crime scene evidence pursuant to existing law, the agency shall state in writing the reason the kit collected as part of the case’s investigation was not analyzed.

This bill imposes these requirements for kits collected on or after January 1, 2018.

This bill requires that the DOJ file a report to the Legislature on an annual basis summarizing the information in its database.

This bill prohibits 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 agency’s duty to produce exculpatory evidence to a defendant in a criminal case.

This bill finds and declares the following:

There is a significant public interest in knowing the percentage of rape kits that are analyzed to identify the perpetrator’s DNA profile, as well as the reason for any untested rape kits not being analyzed. Currently, there is no mandatory statewide tracking mechanism 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; and

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.

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, knowns 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 exits 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 need 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.

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.

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).) <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.)

3. Argument in Support

According to the Alameda County District Attorney:

A 2014 report by the California State Auditor revealed that each year, thousands of sexual assault kits (SAKs) go unanalyzed by a DNA laboratory for a variety of reasons. I found in my own county, that we had a backlog of over 1,900 untested SAKs. The scope of the statewide SAK 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 SAKs with no explanation why they were not analyzed simply adds to the trauma ensured by survivors seeking justice. The value of DNA evidence in the investigation and prosecution of sexual assault crimes makes these SAK critical for law enforcement. Even in instances where the identity of the assailants is known, forensic analysis often helps identify repeat offenders.

AB 41 would require local agencies to track all SAKs collected from survivors by using SAFE-T in accordance with the State Auditor's recommendations. This improved tracking will help the prosecution of sexual assault cases and provide victims of sexual assault who reported a crime with information about their case that they deserve to know.

4. 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 then-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 the DOJ, AB 41 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 of or not tested. We do not feel that his 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.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 41

Author:(Chiu)

As Amended Ver:March 27, 2017

Majority vote

SUMMARY: Requires 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. Specifically, this bill:

1. Requires law enforcement agencies to report information regarding rape kit evidence, within 120 days of the collection of the kit, to the Department of Justice (DOJ) through a database established by the DOJ. Specifies that information shall include, among other things:
   1. The number of kits collected;
   2. If biological evidence samples were submitted to a deoxyribonucleic acid (DNA) laboratory for analysis; and
   3. If a probative DNA profile was generated.
2. Requires 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.
3. Imposes these requirements for kits collected on or after January 1, 2018.
4. Requires that the DOJ file a report to the Legislature on an annual basis summarizing the information in its database.
5. Prohibits 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 agency's duty to produce exculpatory evidence to a defendant in a criminal case.
6. Finds and declares the following:
   1. There is a significant public interest in knowing the percentage of rape kits that are analyzed to identify the perpetrator's DNA profile, as well as the reason for any untested rape kits not being analyzed. Currently, there is no mandatory statewide tracking mechanism 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; and
   2. 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.

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 out.

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 within 120 days of collection, or the justification why DNA testing did not occur within 120 days of collection. The database is web-based and free for local law enforcement agencies, so the only cost to local agencies will be the workload associated with entering 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 counties 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. DOJ costs 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 41 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 41 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: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0000087

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 41

Author:(Chiu) – As Amended Ver:March 27, 2017

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

SUMMARY:

This bill requires local law enforcement agencies to update the Sexual Assault Forensic Evidence Tracking (SAFE-T) database on the disposition of all sexual assault evidence kits in their custody that were collected after January 1, 2018. 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 within 120 days of collection, or the justification why DNA testing did not occurr within 120 days of collection. The database is web-based and free for local law enforcement agencies, so the only cost to local agencies will be the workload associated with entering 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 counties 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. DOJ costs 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 the Combined DNA Information 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

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 out.

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 audit 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 audit still stressed the need for more information about why agencies decide to send some kits but not others.

1. Purpose. According to the author, when tested, DNA evidence can be an incredibly powerful tool to solve and prevent crime. It can be used to identify an unknown assailant and affirm the survivor's account of the attack and discredit the suspect. It can also exonerate innocent suspects. However, 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 4 requires local law enforcement agencies, within 120 days of collection, to 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 Alameda County District Attorney, "A 2014 report by the California State Auditor revealed that each year, thousands of sexual assault kits (SAKs) go unanalyzed by a DNA laboratory for a variety of reasons. I found in my own county, that we had a backlog of over 1,900 untested SAKs. The scope of the statewide SAK 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.”
6. Opposition. According to the California State Sheriffs' Association, "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 of or not tested. We do not feel that his balanced approach requires alteration.”

The Association also argues that 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 to the DOJ, an unfunded mandate, would divert limited resources away from providing current services.

1. Prior Legislation:

AB 1848 (Chiu), of the 2015-16 Legislative Session was substantially similar to AB 6. AB 1848 was held in the Senate Appropriations Committee.

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.

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

Date of Hearing:

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 41

Author:(Chiu) – As Introduced Ver:December 5, 2016

SUMMARY: Requires 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. Specifically, this bill:

1. Requires law enforcement agencies to report information regarding rape kit evidence, within 120 days of the collection of the kit, to the Department of Justice (DOJ) through a database established by the DOJ. Specifies that information shall include, among other things:
   1. The number of kits collected;
   2. If biological evidence samples were submitted to a DNA laboratory for analysis; and
   3. If a probative DNA profile was generated.
2. Requires 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.
3. Imposes these requirements for kits collected on or after January 1, 2018.
4. Requires that the DOJ file a report to the Legislature on an annual basis summarizing the information in its database.
5. Prohibits 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 agency’s duty to produce exculpatory evidence to a defendant in a criminal case.
6. Finds and declares the following:
   1. There is a significant public interest in knowing the percentage of rape kits that are analyzed to identify the perpetrator’s DNA profile, as well as the reason for any untested rape kits not being analyzed. Currently, there is no mandatory statewide tracking mechanism 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; and
   2. 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.

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 out. (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 41 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 41 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.

1. 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 the Alameda County District Attorney, "A 2014 report by the California State Auditor revealed that each year, thousands of sexual assault kits (SAKs) go unanalyzed by a DNA laboratory for a variety of reasons. I found in my own county, that we had a backlog of over 1,900 untested SAKs. The scope of the statewide SAK 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 SAKs with no explanation why they were not analyzed simply adds to the trauma ensured by survivors seeking justice. The value of DNA evidence in the investigation and prosecution of sexual assault crimes makes these SAK critical for law enforcement. Even in instances where the identity of the assailants is known, forensic analysis often helps identify repeat offenders.

"AB 41 would require local agencies to track all SAKs collected from survivors by using SAFE-T in accordance with the State Auditor's recommendations. This improved tracking will help the prosecution of sexual assault cases and provide victims of sexual assault who reported a crime with information about their case that they deserve to know."

1. 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 then-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 the DOJ, AB 41 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 of or not tested. We do not feel that his 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."

1. 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 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. AB 558 was vetoed by Governor Schwarzenegger.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda District Attorney (Sponsor)

Association for Los Angeles Deputy Sheriffs

California College and University Police Chiefs Association

California Narcotic Officers Association

Los Angeles County Probation Officers Union AFSME Local 685
Los Angeles Deputy Sheriffs

Los Angeles Police Protective League

Riverside Sheriffs' Association

San Francisco Department on the Status of Women

San Francisco District Attorney

San Francisco Sheriff

Santa Barbara District Attorney

Santa Clara District Attorney

Opposition

California State Sheriffs' Association

Analysis Prepared by:

Gabriel Caswell / PUB. S. /