Existing law declares that timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. Existing law finds and declares that law enforcement agencies should either submit sexual assault forensic evidence received on or after January 1, 2016, to a crime lab within 20 days after it is booked into evidence or to ensure that a rapid turnaround DNA program is in place, as specified. Existing law also finds and declares that a crime lab that receives sexual assault forensic evidence on or after January 1, 2016, should either process the evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System, as specified, or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after receiving the evidence, for processing of the evidence for the presence of DNA.

This bill would instead require a law enforcement agency to either submit sexual assault forensic evidence to a crime lab or ensure that a rapid turnaround DNA program is in place, as specified, and require a crime lab to either process the evidence or transmit the evidence to another crime lab for processing, as specified. Because this bill would impose a higher level of service on local law enforcement agencies in processing that evidence, it would impose a state-mandated local program. The bill would appropriate $2,000,000 from the General Fund to the Department of Justice to allocate to local law enforcement agencies to assist them with complying with that requirement.

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 the statutory provisions noted above.

Existing law declares that timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. Existing law finds and declares that law enforcement agencies should either submit sexual assault forensic evidence received on or after January 1, 2016, to a crime lab within 20 days after it is booked into evidence or to ensure that a rapid turnaround DNA program is in place, as specified. Existing law also finds and declares that a crime lab that receives sexual assault forensic evidence on or after January 1, 2016, should either process the evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System, as specified, or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after receiving the evidence, for processing of the evidence for the presence of DNA.

This bill would instead require a law enforcement agency to either submit sexual assault forensic evidence to a crime lab or ensure that a rapid turnaround DNA program is in place, as specified, and require a crime lab to either process the evidence or transmit the evidence to another crime lab for processing, as specified. Because this bill would impose a higher level of service on local law enforcement agencies in processing that evidence, it would impose a state-mandated local program. The bill would appropriate $2,000,000 from the General Fund to the Department of Justice to allocate to local law enforcement agencies to assist them with complying with that requirement.

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 the statutory provisions noted above.

SENATE THIRD READING

STR Bill Id:SB 22

Author:(Leyva)

As Amended Ver:May 17, 2019

Majority vote

SUMMARY:

Requires law enforcement agencies to submit sexual assault forensic evidence to a crime lab and requires crime labs to either process the evidence for DNA profiles and upload them into the Combined DNA Index System (CODIS) or transmit the evidence to another crime lab for processing and uploading.

Major Provisions

1. States that a law enforcement agency in whose jurisdiction a specified sex offense occurred, for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016, shall either submit the sexual assault forensic evidence to A crime lab within 20 days after it is booked into evidence, or ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.
2. States that a crime lab, for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016, shall either process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) as soon as practically possible, but no later than 120 days after initially receiving the evidence, or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no later than 30 days after being notified.

COMMENTS:

According to the Author:

"Senate Bill 22 will help to ensure that survivors of rape have equal access to justice by promptly testing all rape kits collected after an assault. It is critically important that any DNA evidence left behind by the attacker is processed quickly so that law enforcement authorities can identify and prosecute rapists and we can put them behind bars—where they belong. It is unacceptable for a rape kit to ever sit on a shelf somewhere untested, since that rape kit represents a person and testing that kit can also help keep potential victims safe."

Arguments in Support:

According to the bill's co-sponsor, the Joyful Heart Foundation, "Every 98 seconds, someone is sexually assaulted in the United States. In the immediate aftermath of a sexual assault, a victim may choose to undergo a medical forensic examination to collect evidence left behind in the assault. A doctor or nurse will conduct the examination, which can last between four and six hours, and collect evidence in what is commonly called a rape kit. Survivors—and the public—expect that these kits will be used to apprehend offenders. Far too often, these kits are not submitted to crime labs for testing and are simply shelved in law enforcement storage.

"S.B. 22 amends language of existing California law, which merely encourages law enforcement agencies to submit kits for testing. The Sexual Assault Victims' DNA Bill of Rights states that sexual assault forensic evidence received after January 1, 2016 should be submitted for testing within 20 days, that laboratories should test the kit and submit DNA evidence as soon as possible but within 120 days, and a transferred kit's DNA evidence should be uploaded as soon as possible but within 30 days."

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Costs (GF/DNA Identification Fund) of approximately $854,000 annually for the Department of Justice (DOJ) for personnel, operating expenses and equipment.
2. Possible state reimbursable costs (local funds/GF) in the hundreds of thousands of dollars annually for local law enforcement agencies. The Los Angeles County Sheriff's Department anticipates additional personnel costs of about $450,000 to process the evidence within the timeframe required. Local costs to comply with this bill would be subject to reimbursement by the state to the extent the Commission on State Mandates determines this bill imposes a reimbursable state-mandated local program.

VOTES:

SENATE FLOOR: 38-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Kamlager-Dove, Quirk, Santiago, Wicks

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: May 17, 2019

CONSULTANT: Matthew Fleming (Counsel) / PUB. S. / (916) 319-3744 FN: 0001669

Date of Hearing: June 19, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 22

Author:(Leyva) – As Amended Ver:May 17, 2019

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

SUMMARY:

This bill requires law enforcement agencies to either submit sexual assault forensic evidence to a crime lab or ensure a rapid turnaround DNA program is in place. This bill also requires crime labs to either process evidence for DNA profiles and upload them into the Combined DNA Index System (CODIS) or transmit the evidence to another crime lab for processing and uploading.

FISCAL EFFECT:

1. Costs (GF/DNA Identification Fund) of approximately $854,000 annually for the Department of Justice (DOJ) for personnel, operating expenses and equipment.
2. Possible state reimbursable costs (local funds/GF) in the hundreds of thousands of dollars annually for local law enforcement agencies. The Los Angeles County Sheriff’s Department anticipates additional personnel costs of about $450,000 to process the evidence within the timeframe required. Local costs to comply with this bill would be subject to reimbursement by the state to the extent the Commission on State Mandates determines this bill imposes a reimbursable state-mandated local program.

COMMENTS:

1. Purpose. According to the author:

Senate Bill 22 will help to ensure that survivors of rape have equal access to justice by promptly testing all rape kits collected after an assault. It is critically important that any DNA evidence left behind by the attacker is processed quickly so that law enforcement authorities can identify and prosecute rapists and we can put them behind bars—where they belong.

1. Background. Existing law provides law enforcement agencies should either submit sexual assault forensic evidence to a crime lab within 20 days after it is booked into evidence or ensure a rapid turnaround DNA program in place. This bill would require, rather than encourage, law enforcement to take one of these actions. Existing law also encourages a crime lab that receives sexual assault forensic evidence to either process the evidence, create DNA profiles and upload qualifying DNA profiles into CODIS, or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible but no later than 30 days after receiving the evidence. This bill provides that these actions must be taken.
   AB 3118, Chapter 950, Statutes of 2018, required law enforcement agencies or any other agency that possesses sexual assault evidence kits to conduct an audit of all kits in their possession and report the findings to the DOJ. DOJ has yet to report the results of the audit.
2. Related Legislation. AB 1496 (Frazier) required a law enforcement agency to either submit sexual assault forensic evidence to a crime lab or ensure a rapid turnaround DNA program is in place and require a crime lab to either process the evidence or transmit the evidence to another crime lab for processing within existing specified time frames. AB 1496 was held on this committee’s Suspense File.
3. Prior Legislation. SB 1449 (Leyva), of the 2017-2018 Legislative Session, would have required law enforcement agencies to either submit sexual assault forensic evidence to a crime lab or ensure that a rapid turnaround DNA program is in place. It also would have required crime labs to either process the evidence for DNA profiles and upload them into the Combined DNA Index System (CODIS) or transmit the evidence to another crime lab for processing and uploading. SB 1449 was vetoed by Governor pending the outcome of the audit.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: June 11, 2019

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 22

Author:(Leyva) – As Amended Ver:May 17, 2019

SUMMARY: Requires law enforcement agencies to either submit sexual assault forensic evidence to a crime lab or ensure that a rapid turnaround DNA program is in place, and requires crime labs to either process the evidence for DNA profiles and upload them into the Combined DNA Index System (CODIS) or transmit the evidence to another crime lab for processing and uploading. Specifically, this bill:

1. States that a law enforcement agency in whose jurisdiction a specified sex offense occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
   
   1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or
      
   2. Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.
      
2. States that a crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:
   
   1. Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) as soon as practically possible, but no later than 120 days after initially receiving the evidence; or
      
   2. Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified.

EXISTING LAW:

1. Provides that in order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required and to ensure the longest possible statute of limitations for sex offenses the following should occur:
   
   1. A law enforcement agency in whose jurisdiction a specified sex offense occurred should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
      1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; and
      2. Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.
   2. The crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:
      1. Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence; or
      2. Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified. (Pen. Code, § 680, subds. (b)(7)(A) and (B).)
2. Specifies that crime labs do not need to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. (Pen. Code, § 680, subd. (b)(7)(C).)
3. Specifies that a DNA profile need not be uploaded into CODIS if it does not meet the federal guidelines. (Pen. Code, § 680, subd. (b)(7)(D).)
4. Encourages DNA analysis of rape kit evidence 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 (b)(6).)
5. Encourages law enforcement agencies to submit rape kits to crime labs within 20 days after the kit is booked into evidence. (Pen. Code § 680 (b)(7)(A)(i).)
   
6. 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 (b)(7)(A)(ii) and (E).)
   
7. Defines “rapid turnaround DNA program” as a program for training of sexual assault team personnel in the selection of a representative samples of forensic evidence from the victim to be the best evidence based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. (Pen. Code, § 680, subd. (c)(2)(5).)
   
8. 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 (b)(7)(B).)
      
9. Provides that upon the request of a sexual assault victim, the law enforcement agency investigation of a specified sex offense shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence form the victim’s case. (Penal Code § 680 (c)(1))
   
10. Establishes the Sexual Assault Victims' DNA Bill of Rights which provides victims of sexual assault with the following rights:
    
    1. The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case;
       
    2. The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice (DOJ) Data Bank of case evidence; and,
       
    3. The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. (Pen. Code § 680 (c)(2).)
       
11. 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 (e) and (f), 803.)
    
12. Provides that a criminal complaint for a registerable sex offense may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing as specified. (Pen. Code, § 803, subd. (g).)
    
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Senate Bill 22 will help to ensure that survivors of rape have equal access to justice by promptly testing all rape kits collected after an assault. It is critically important that any DNA evidence left behind by the attacker is processed quickly so that law enforcement authorities can identify and prosecute rapists and we can put them behind bars—where they belong. It is unacceptable for a rape kit to ever sit on a shelf somewhere untested, since that rape kit represents a person and testing that kit can also help keep potential victims safe.”
   
2. Sexual Assault Kits: After a sexual assault has occurred, victims of the crime may choose to be seen by a medical professional, who then conducts an examination to collect any possible biological evidence left by the perpetrator. To collect forensic evidence, many jurisdictions provide what is called a “sexual assault kit.” Sexual assault kits often contain a range of scientific instruments designed to collect forensic evidence such as swabs, test tubes, microscopic slides, and evidence collection envelopes for hairs and fibers. (National Institute of Justice (NIJ), Sexual Assault Kits: Using Science to Find Solutions, Sept. 10, 2015, available at: https://nij.gov/unsubmitted-kits/Pages/default.aspx [as of June 6, 2019].)
   
   The composition of sexual assault kits vary depending on jurisdiction. For example, according to a report from 2011, the police and sheriff’s department in Los Angeles use identically arranged sexual assault kits, however, the rest of California does not. (NIJ, The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases, May 2011, at page 2, available at: https://www.ncjrs.gov/pdffiles1/nij/233279.pdf, [as of June 6, 2019].)
   
3. Combined DNA Index System (CODIS): Analyzing forensic evidence from sexual assault kits assists in linking the perpetrator to the sexual assault. Generally, once a hospital or clinic has conducted a sexual assault kit examination, it transfers the kit to a local law enforcement agency. From here, the law enforcement agency may send the kit to a forensic laboratory. Evidence collected from a kit can be analyzed by crime laboratories and could provide the DNA profile of the offender. Once law enforcement authorities have that genetic profile, they could then upload the information onto CODIS.
   
   Created by the FBI in 1990, CODIS is a national database that stores the genetic profiles of sexual assault offenders onto a software program. By exchanging, testing, and comparing genetic profiles through CODIS, law enforcement agencies can discover the name of an unknown suspect who was in the system or link together cases that still have an unknown offender. The efficacy of CODIS depends on the volume of genetic profiles that law enforcement agencies submit. (FBI website, Combined DNA Index System (CODIS), available at: https://www.fbi.gov/services/laboratory/biometric-analysis/codis,[as of June 6, 2019].) At present, more than 190 law enforcement agencies use CODIS. (Id.)
   
4. Unsubmitted Sexual Assault Kits: California law currently encourages, but does not require any agency to send a sexual assault kit to a crime lab. Recently, however, legislation has been enacted that encourages such transfers. (Pen. Code, § 680, subd. (b)(7)(A).) There are a number of reasons why law enforcement authorities do not submit a kit to a crime lab. For example, identity of the suspect may never have been at issue. Often times, whether or not the victim consented to the sexual activity is the most important issue in the case, not the identity of the suspect. In other cases, charges may be dropped for a variety for reasons, or a guilty plea may be entered rendering further investigation moot. (USDOJ’s National Institute of Justice, supra.)
   
   A 2014 report by the State Auditor found that law enforcement rarely documents reasons for not analyzing sexual assault evidence kits. (State Auditor, Sexual Assault Evidence Kits, Oct. 2014, at page 17, available at: https://www.bsa.ca.gov/pdfs/reports/2014-109.pdf, [as of June 6, 2019].) 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.” (Id. at 23.)
   
   Upon a more in-depth review of the individual cases, the report found that analysis of the kits would not have been likely to further the investigation of those cases. 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.)
   
   Although the audit found the explanations for not submitting the sexual assault kits to be reasonable, testing those kits may have identified offenders who had committed another crime for which they were never previously identified. The National Institute of Justice funded Detroit, Michigan and Houston, Texas to test their unsubmitted sexual assault kits. The results revealed that testing unsubmitted kits can lead to convicting hundreds to thousands of serial offenders; such testing identified over 400 serial rapists in Detroit alone. (NIJ, National Sexual Assault Kit Initiative (SAKI): FY 2017 Competitive Grant Announcement, Dec. 20, 2016, available at: https://www.bja.gov/funding/SAKI17.pdf [as of June 6, 2019].)
   
   Testing unsubmitted kits may be particularly effective in California, which passed Proposition 69 in 2004, requiring all persons arrested or charged of a felony to submit DNA samples. (Pen. Code, § 296.) For example, a serial offender is currently “awaiting trial in Alameda County Superior Court for sexual assaults against five women ranging in age from 15 to 46, and for the 2015 killing of one rape victim, Randhir Kaur, who was a UCSF dental student. All of the cases are linked by DNA evidence.” In one of his earlier cases from 2008, the law enforcement agency did not get the sexual assault kit tested, which, if they had, could have identified him as he was in the national DNA database for a 2005 felony gun conviction. (Gutierrez and Veklerov, San Francisco Chronicle, Efforts to Clear California’s Rape Kit Testing Backlog Fall Short, Mar. 17, 2018, available at: https://www.sfchronicle.com/news/article/Efforts-to-clear-California-s-rape-kit-testing-12760627.php [as of June 6, 2019].)
   
5. The Need for this Bill: Existing law provides that law enforcement agencies should either submit sexual assault forensic evidence to a crime lab within 20 days after it is booked into evidence or insure that rapid turnaround DNA program in in place. This bill would require law enforcement to take one of these actions.

Existing law also encourages a crime lab that receives sexual assault forensic evidence to either process the evidence, create DNA profiles and upload qualifying DNA profiles into CODIS or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible but no later than 30 days after receiving the evidence. This bill instead provides that these actions shall be taken.

Although this bill will not undo the backlog of untested kits – estimated to be more than ten thousand by the sponsor of the bill (http://www.endthebacklog.org/california) – it should prevent additional backlog provided that law enforcement agencies and crime labs have the resource to keep up with the influx of new kits.

AB 3118 (Chiu) Chapter 950, Statutes of 2018 required each law enforcement agency, crime lab, medical facility, or other facility in possession of sexual assault kits to conduct an audit of all the kits in their possession and report specified information about them to the DOJ. In turn, the DOJ is required to compile the information and submit a report to the Legislature. The information to be audited includes the date when the kits were collected, whether they were tested by a crime lab, whether the information from the test was uploaded to CODIS, etc. DOJ’s report is due to the Legislature in July, 2020.

1. Governor Brown’s Veto Message on SB 1449: Last year the author introduced SB 1449, which was nearly identical to this bill. SB 1449 was vetoed by Governor Brown, who stated:

“I am returning Senate Bill 1449 without my signature.

“This bill would require the testing of all sexual assault forensic evidence kits within a specified period of time.

“The state budget that I signed this year includes a one-time total of $7.5 million General Fund to test rape kits-$1 million to begin conducting an audit of untested kits and $6.5 million to help test the existing known backlog. 

“While I fully support the goal of this bill, I believe that we should allow for the completion of the audit mandated by AB 3118 (Chiu)-which I am signing today-as well as for the Department of Justice to further reduce the existing backlog using the recently approved significant funding increase. I would like to allow time for this year's legislative actions to take effect so we can gauge the appropriate next steps and budget accordingly.”

1. Argument in Support: According to the bill’s co-sponsor, the Joyful Heart Foundation, “Every 98 seconds, someone is sexually assaulted in the United States. In the immediate

aftermath of a sexual assault, a victim may choose to undergo a medical forensic examination to collect evidence left behind in the assault. A doctor or nurse will conduct the examination, which can last between four and six hours, and collect evidence in what is commonly called a rape kit. Survivors—and the public—expect that these kits will be used to apprehend offenders. Far too often, these kits are not submitted to crime labs for testing and are simply shelved in law enforcement storage.

“S.B. 22 amends language of existing California law, which merely encourages law enforcement agencies to submit kits for testing. The Sexual Assault Victims’ DNA Bill of Rights states that sexual assault forensic evidence received after January 1, 2016 should be submitted for testing within 20 days, that laboratories should test the kit and submit DNA evidence as soon as possible but within 120 days, and a transferred kit’s DNA evidence should be uploaded as soon as possible but within 30 days.”

1. Argument in Opposition: According to the California Public Defender’s Association, “How crime laboratories allocate their limited resources should not be micromanaged by the state legislature. While the testing of DNA evidence from sexual assault cases is important, it is not more important than DNA testing on items of evidence collected in the investigation of other types of violent crime such as homicides, kidnapping or assaults and not more important than other types of forensic testing such as firearms analysis, fingerprint comparison and trace evidence analysis. Moreover, because this bill would prioritize the testing of evidence from any sexual assault cases over testing from any other serious and violent crimes, regardless of the relative importance of those test results in prosecuting the charged offense, it might actually jeopardize successful prosecutions for serious crimes. Additionally, the need to meet the stringent and categorical time limits imposed by this bill will delay DNA testing which could lead to an incarcerated or imprisoned person’s exoneration and freedom.”
   
2. Related Legislation:
   
   1. AB 358 (Low), would require the creation of a statewide tracking system to allow a victim of a sexual assault crime to monitor the status of the processing and testing of a sexual assault forensic exam related to their case. AB 358 was held on the Assembly Appropriations Committee Suspense File.
      
   2. AB 1496 (Frazier), is nearly identical to this bill, but would only require the prompt testing of sexual assault kits as of 2020 and for kits collected prior to then would have a relaxed timeline for submission and testing. AB 1496 was held on the Assembly Appropriations Committee Suspense File.
      
3. Prior Legislation:
   
   1. AB 3118 (Chiu), Chapter 950, Statutes of 2018, required each law enforcement agency, crime lab, medical facility, or any other facility that possesses sexual assault evidence kits to conduct an audit of all kits in their possession and report the findings to the DOJ, who is then required to submit a report to the Legislature.
      
   2. SB 1449 (Leyva), of the 2017 – 2018 Legislative Session, was nearly identical to this bill. SB 1449 was vetoed by Governor Brown.
      
   3. AB 41 (Chiu), Chapter 694, Statutes of 2017, required all local law enforcement agencies investigating a case involving sexual assault to input specified information relating to the administration of a sexual assault kit into the DOJ’s SAFE-T database within 120 days of collection. It also required public laboratories to input an explanation onto SAFE-T if they had not completed DNA testing of a sexual assault kit within 120 days of acquiring the kit.
      
   4. AB 1312 (Gonzalez Fletcher), Chapter 692, Statutes of 2017, required law enforcement and medical professionals to provide victims of sexual assault with written notification of their rights. Provides additional rights to sexual assault victims, and mandates law enforcement and crime labs to complete tasks related to rape kit evidence.
      
   5. AB 1848 (Chiu), of the 2015-2016 Legislative Session, would have required local law enforcement agencies to conduct an audit of sexual assault kits collected during a period of time, as specified by the DOJ, and to submit data regarding the total number of kits, the amount of kits submitted for DNA testing, the amount not submitted and other information, as specified. AB 1848 was held in the Senate Appropriations Committee.
      
   6. AB 2499 (Maienschein), Chapter 884, Statutes of 2016, required the DOJ to, in consultation with law enforcement agencies and crime victims groups, establish a process giving location and other information to victims of sexual assault upon inquiry.
      
   7. SB 1079 (Glazer), of the 2015-2016 Legislative Session, would have required the DOJ to maintain a restricted access repository for tracking DNA database hits that local law enforcement agencies could use to share investigative information. SB 1079 was held in the Senate Appropriations Committee.
      
   8. AB 1517 (Skinner), Chapter 874, Statutes of 2014, provided preferred timelines that law enforcement agencies and crime labs should follow when dealing with sexual assault forensic evidence.
      
   9. AB 322 (Portantino), of the 2011-2012 Legislative Session, would have established a pilot project administered by the DOJ. The project would have required ten counties to open and test all rape kits collected from July 1, 2012, to December 31, 2014. AB 322 was vetoed by the Governor.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney's Office (Co-Sponsor)
Joyful Heart Foundation (Co-Sponsor)
Natasha's Justice Project (Co-Sponsor)
Santa Barbara Women's Political Committee (Co-Sponsor)
California District Attorneys Association
California Police Chiefs Association
Change for Justice
National Association of Social Workers, California Chapter
Riverside Sheriffs' Association
San Diego County District Attorney's Office
Stonewall Democratic Club
Students Against Sexual Assault
UCSB Lobby Corps

Oppose

California Public Defenders Association

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 22

Author: Leyva (D), et al.

Amended: 5/17/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 3/26/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/16/19

AYES: Portantino, Bates, Bradford, Hill, Jones, Wieckowski

SUBJECT: Rape kits: testing

SOURCE: Alameda County District Attorney

Joyful Heart Foundation

Natasha’s Justice Project

DIGEST: This bill requires a law enforcement agency to either submit sexual assault forensic evidence to a crime lab or ensure a rapid turnaround DNA program is in place and requires a crime lab to either process the evidence or transmit the evidence to another crime lab for processing within existing specified timeframes.

ANALYSIS:

Existing law:

1. Provides that notwithstanding any other limitation of the time described in this chapter, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA if specified conditions are met. (Penal Code § 803(g).)
2. 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).)
   
3. 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).)
   
4. 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).)
5. 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).)
      
6. Provides that upon the request of a sexual assault victim, the law enforcement agency investigation a specified sex offense shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence form the victim’s case. (Penal Code §680(c)(1))
7. Establishes the Sexual Assault Victims' DNA Bill of Rights which provides victims of sexual assault with the following rights:
   1. The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case;
   2. The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice (DOJ) Data Bank of case evidence; and,
   3. The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. (Penal Code, § 680 (c)(2).)
8. 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.)
9. Provides that in order to ensure that sexual assault forensic evidence is analyzed within the two year time frame required and to ensure the longest possible statute of limitations for sex offenses the following should occur:
   1. A law enforcement agency in whose jurisdiction a specified sex offense occurred should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
      1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.
      2. Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected form 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.
   2. The crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.
      1. Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.
      2. Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified.
   3. This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination.
   4. This section does not require a DNA profile to be uploaded into CODIS if it does not meet the federal guidelines.
   5. A rapid turnaround DNA program is a program for training of sexual assault team peronnel in the selection of a representative samples of forensic evidence from the victim to be the best evidence based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. (Penal Code § 680 (b)(7))
      

This bill provides instead that in order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required and to ensure the longest possible statute of limitations for sex offenses the following shall occur:

1. A law enforcement agency in whose jurisdiction a specified sex offense occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
   1. Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.
   2. Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected form 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.
2. The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:
   1. Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.
   2. Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified.

Background

California established the Sexual Assault Victims' Bill of Rights in 2003. (AB 898, Chu, Chapter 537, Statutes of 2003.) In passing that law, the Legislature found and declared that "[l]aw enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases." Upon the request of the survivor, law enforcement agencies investigating the sexual assault may inform the survivor of the status of the DNA testing. Specifically, the California DNA Bill of Rights provides that subject to sufficient resources to respond to requests, survivors have a right to be informed whether or not the assailant's DNA profile was developed from the rape kit evidence, whether or not that profile was uploaded to the DNA database and whether or not a hit resulted from the upload.

The Sexual Assault Victims' Bill of Rights was amended by AB 1517 (Skinner, Chapter 874, Statutes of 2014). Those amendments encouraged law enforcement and crime labs to handle and process sexual assault forensic evidence within specific time frame.

Specifically, existing law provides that law enforcement agencies should either submit sexual assault forensic evidence to a crime lab within 20 days after it is booked into or evidence or insure that rapid turnaround DNA program in in place. This bill would provide instead that law enforcement shall take one of these actions.

Existing law also encourages a crime lab that receives sexual assault forensic evidence to either process the evidence, create DNA profiles and upload qualifying DNA profiles into CODIS or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible but no later than 30 days after receiving the evidence. This bill instead provides that these actions shall be taken.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Crime labs: The Department of Justice (DOJ) reports ongoing annual costs of $854,000 for personnel with attendant operating expenses and equipment. (special fund*, General Fund)

The Los Angeles County Sheriff’s Department anticipates additional personnel costs of about $450,000 to process the evidence within the timeframe required. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

• Local law enforcement agencies: Costs to local law enforcement agencies to comply with this measure vary depending on each agency’s current practice. For agencies that already submit the evidence within the currently-encouraged timeframe, no new costs are anticipated from this bill. Other agencies anticipate costs of around $1,000 annually. (General Fund, local funds)

SUPPORT: (Verified 5/16/19)

Alameda County District Attorney (co-source)

Joyful Heart Foundation (co-source)

Natasha’s Justice Project (co-source)

California Police Chiefs Association

Change for Justice

Los Angeles Indivisible

National Association of Social Workers, California Chapter

Riverside Sheriffs’ Association

Santa Barbara Women’s Political Committee

OPPOSITION: (Verified 5/16/19)

California Public Defenders Association

Prepared by: Mary Kennedy / PUB. S. /

5/20/19 12:25:09

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 22 (Leyva) - Rape kits: testing

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

The following information is revised to reflect amendments

adopted by the committee on May 16, 2019

Bill Summary:

SB 22 would require a law enforcement agency to submit sexual assault forensic evidence to a crime lab, as specified, and would require the lab to process the evidence and upload DNA profiles into a national DNA database, as specified.

Fiscal Impact:

• Crime labs: The Department of Justice (DOJ) reports ongoing annual costs of $854,000 for personnel with attendant operating expenses and equipment. (special fund*, General Fund)

The Los Angeles County Sheriff’s Department anticipates additional personnel costs of about $450,000 to process the evidence within the timeframe required. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

• Local law enforcement agencies: Costs to local law enforcement agencies to comply with this measure vary depending on each agency’s current practice. For agencies that already submit the evidence within the currently-encouraged timeframe, no new costs are anticipated from SB 22. Other agencies anticipate costs of around $1,000 annually. (General Fund, local funds)

Committee Amendments:

Strike the direct appropriation of $2 million to assist local law enforcement agencies.

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SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 22 (Leyva) - Rape kits: testing

Bill Summary:

SB 22 would require a law enforcement agency to submit sexual assault forensic evidence to a crime lab, as specified, and would require the lab to process the evidence and upload DNA profiles into a national DNA database, as specified. Additionally, it would directly appropriate $2 million to assist local law enforcement agencies to comply with the requirements of this bill.

Fiscal Impact:

• Crime labs: The Department of Justice (DOJ) reports ongoing annual costs of $854,000 for personnel with attendant operating expenses and equipment. (special fund*, General Fund)

The Los Angeles County Sheriff’s Department anticipates additional personnel costs of about $450,000 to process the evidence within the timeframe required. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

• Local law enforcement agencies: Costs to local law enforcement agencies to comply with this measure vary depending on each agency’s current practice. For agencies that already submit the evidence within the currently-encouraged timeframe, no new costs are anticipated from SB 22. Other agencies anticipate costs of around $1,000 annually. (General Fund, local funds)
• Appropriation: This bill includes a direct appropriation of $2 million from the General Fund to DOJ to allocate to local law enforcement agencies for assistance to comply with this measure.

*DNA Identification Fund—structurally imbalanced

Background:

California established the Sexual Assault Victims' Bill of Rights in 2003. In passing that law, the Legislature found and declared that "[l]aw enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases." Upon the request of the survivor, law enforcement agencies investigating the sexual assault allegation may inform the survivor of the status of the DNA testing. Specifically, the California DNA Bill of Rights provides that subject to sufficient resources to respond to requests, survivors have a right to be informed whether the assailant's DNA profile was developed from the evidence, whether that profile was uploaded to the DNA database, and whether a hit resulted from the upload.

The Sexual Assault Victims' Bill of Rights was amended in 2014. Those amendments encouraged law enforcement agencies and crime labs to handle and process sexual assault forensic evidence within specific time frame. Specifically, law enforcement agencies “should” either submit sexual assault forensic evidence to a crime lab within 20 days after it is booked into evidence or insure that a rapid turnaround DNA program is in place.

Existing law also encourages a crime lab that receives sexual assault forensic evidence to either (1) process the evidence, create DNA profiles, and upload qualifying DNA profiles into the national database or (2) transmit the sexual assault forensic evidence to another crime lab as soon as practically possible but no later than 30 days after receiving the evidence.

Proposed Law:

This bill would:

• Require a law enforcement agency to either
  • Submit sexual assault forensic evidence to a crime lab, or
  • Ensure that a rapid turnaround DNA program is in place, as specified.
• Require a crime lab to either
  • Process the evidence or
  • Transmit the evidence to another crime lab for processing, as specified.
• Appropriate $2 million from the General Fund to DOJ to allocate to local law enforcement agencies for assistance with complying with the requirements of this measure.

Related Legislation:

SB 1449 (Leyva, 2018), when heard by this Committee, was substantially similar to this measure and was vetoed by the Governor.

AB 3118 (Chiu, Gonzalez Fletcher, Ch. 950, Stats. 2018) required each law enforcement agency, crime lab, medical facility, or any other facility that possesses sexual assault evidence kits to conduct an audit of all untested kits in their possession and report the findings to DOJ, as specified.

AB 41 (Chiu, Ch. 694, Stats. 2017) required law enforcement agencies to report specified information, and update such information, regarding the collection and processing of sexual assault forensic evidence, as specified.

AB 1848 (Chiu, 2016) was substantially similar to AB 41 (Chiu, 2017). AB 1848 was held on the Suspense File of this Committee.

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

Staff Comments:

The Department of Justice anticipates receiving about 121 additional kits annually if this measure is enacted. To accommodate the increased workload within the timeframe required, DOJ reports that it would need 3.0 new Criminalists and 1.0 Criminalist Supervisor. The new personnel would be funded from the DNA Identification Fund, which has experienced significant revenue decreases in recent years to the extent that it is structurally imbalanced. From 2013-14 to 2016-17, revenue has decreased by approximately 23 percent. The FY 2019-20 proposed budget anticipates a beginning balance of $5.1 million, revenue of $51.1 million, expenditures of $56 million, and an ending reserve of almost $300,000. Given the operational deficit of the DNA Identification Fund, the added expense to comply SB 22 would create cost pressure on the General Fund to backfill any shortage.

The Los Angeles County Sheriff’s Department, which processes forensic evidence for its own cases and from those of other law enforcement agencies, anticipates processing 15 to 25 additional kits a month because of SB 22. It expects the need of 3.0 additional analysts to process the workload anticipated from other agencies sending in all of their forensic evidence for processing. Additionally, the department uses contract labs on occasion to process sexual assault forensic evidence and would contract out the processing of more evidence than it does currently. Once the evidence is processed by the contract lab, it is returned to the Sheriff’s Department to upload the DNA profile into the national database, which requires the use of additional department resources.

In his veto message of SB 1449 (Leyva, 2018), the Governor stated that while he supported the goal of the bill, he “believe[d] that we should allow for the completion of the audit mandated by AB 3118 (Chiu) … as well as for the Department of Justice to further reduce existing backlog using the recently approved significant funding increase.” He also stated his preference for allowing additional time for last year’s legislative actions to take effect in order to gauge the appropriate next steps and budget accordingly. The Department of Justice is required to submit a report to the Legislature of law enforcement agencies’ audits required by AB 3118 no later than July 1, 2020.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: SB 22 Hearing Date: March 26, 2019

Subject: Rape Kits: Testing

HISTORY

Source: Alameda County District Attorney

Joyful Heart Foundation

Natasha’s Justice Project

Prior Legislation: SB 1449 (Leyva) Vetoed 2018

AB 1312 (Gonzalez Fletcher) Chapter 692, Stats. 2017

AB 1517 (Skinner) Chapter 874, Stats. 2014

AB 322 (Portantino) Vetoed 2011

AB 558 (Portantino) Vetoed 2010

AB 1017 (Portantino) Vetoed 2009

AB 898 (Chu) Chapter 537, Stats. 2003

Support: Change for Justice; Los Angeles Indivisible; National Association of Social Workers, California Chapter; Riverside Sheriffs’ Association; Santa Barbara Women’s Political Committee

Opposition: California Public Defenders Association

PURPOSE

The purpose of this bill is to require a law enforcement agency to either submit sexual assault forensic evidence to a crime lab or ensure a rapid turnaround DNA program is in place and require a crime lab to either process the evidence or transmit the evidence to another crime lab for processing within existing specified time frames.

Existing law provides that notwithstanding any other limitation of the time described in this chapter, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA if specified conditions are met. (Penal Code § 803(g).)

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:

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).)
   

Existing law provides that upon the request of a sexual assault victim, the law enforcement agency investigation a specified sex offense shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence form the victim’s case. (Penal Code §680(c)(1))

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

1. The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case;
2. The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice (DOJ) Data Bank of case evidence; and,
3. The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. (Penal Code, § 680 (c)(2).)

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.)

Existing law provides that in order to ensure that sexual assault forensic evidence is analyzed within the two year time frame required and to ensure the longest possible statute of limitations for sex offenses the following should occur:

1. A law enforcement agency in whose jurisdiction a specified sex offense occurred should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
   • Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.
   • Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected form 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.
2. The crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.
   • Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.
   • Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified.
3. This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination.
4. This section does not require a DNA profile to be uploaded into CODIS if it does not meet the federal guidelines.
5. A rapid turnaround DNA program is a program for training of sexual assault team personnel in the selection of a representative samples of forensic evidence from the victim to be the best evidence based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. (Penal Code § 680 (b)(7))
   

This bill provides instead that in order to ensure that sexual assault forensic evidence is analyzed within the two year time frame required and to ensure the longest possible statute of limitations for sex offenses the following shall occur:

1. A law enforcement agency in whose jurisdiction a specified sex offense occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
   • Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.
   • Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected form 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.
2. The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.
   • Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.
   • Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified.

This bill provides that the sum of two million dollars is hereby appropriated form the General Fund to the Department of Justice to allocate to local law enforcement agencies to assist them with complying with Penal Code Section 680.

COMMENTS

1. Need for This Bill

According to the author:

Following a sexual assault, survivors in California may elect to undergo a forensic medical examination to collect evidence in a rape kit. If the survivor chooses to report the crime, the law enforcement agency with jurisdiction over the offense will take the kit into custody and submit it to a forensic laboratory for DNA analysis.

To maximize evidentiary value and standardize investigation of sexual assault crimes, federal best practices issued by the United States Department of Justice Bureau of Justice Assistance recommend that all rape kits connected to reported crimes be swiftly submitted to laboratories and tested for DNA. Testing DNA evidence in rape kits can identify an unknown assailant, link crimes, identify serial perpetrators, and exonerate the wrongfully convicted.

As amended by Chapter 874, Statutes of 2014, California law states that law enforcement agencies “should” transfer rape kit evidence to the appropriate forensic laboratory within 20 days and that laboratories “should” process such evidence as soon as possible, but no later than 120 days, following receipt. Due to the current language of the law, this guidance is not currently being followed by a number of law enforcement agencies in the state.

Findings from public records requests filed by the Joyful Heart Foundation demonstrate significant variation in how law enforcement agencies have interpreted and implemented this legislative guidance. Only two jurisdictions of eight surveyed in 2017 reported full compliance with the intent of the law.

Across California, sexual assault survivors are not receiving equal access to justice. Depending on the jurisdiction in which the crime occurred, the timeframe for submission and analysis of their rape kits may vary widely, slowing the criminal justice process.

By amending the language of Penal Code Section 680 from “should” to “shall,” Senate Bill 22 will require all law enforcement agencies and crime labs across the state to follow federal best practices and the intent of existing law. With this change, victims reporting sexual assault across California will have equal access to the swift submission and analysis of forensic evidence associated with their cases. Rape kits must be submitted within 20 days and tested no later than 120 days after receipt, preventing the development of rape kit backlogs in evidence rooms or laboratories throughout California.

2. Should to Shall

California established the Sexual Assault Victims' Bill of Rights in 2003. (AB 898 (Chu), Chapter 537, Statutes of 2003.) In passing that law, the Legislature found and declared that "[l]aw enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases." Upon the request of the survivor, law enforcement agencies investigating the sexual assault may inform the survivor of the status of the DNA testing. Specifically, the California DNA Bill of Rights provides that subject to sufficient resources to respond to requests, survivors have a right to be informed whether or not the assailant's DNA profile was developed from the rape kit evidence, whether or not that profile was uploaded to the DNA database and whether or not a hit resulted from the upload.

The Sexual Assault Victims' Bill of Rights was amended by AB 1517 (Skinner), Chapter 874, Statutes of 2014. Those amendments encouraged law enforcement and crime labs to handle and process sexual assault forensic evidence within specific time frame.

Specifically, existing law provides that law enforcement agencies should either submit sexual assault forensic evidence to a crime lab within 20 days after it is booked into or evidence or insure that rapid turnaround DNA program in in place. This bill would provide instead that law enforcement shall take one of these actions.

Existing law also encourages a crime lab that receives sexual assault forensic evidence to either process the evidence, create DNA profiles and upload qualifying DNA profiles into CODIS or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible but no later than 30 days after receiving the evidence. This bill instead provides that these actions shall be taken.

What is the real impact of changing should to shall? If entities are not currently able to do cases in these time frames, or prioritize other DNA cases over some rape kits, such as those where the perpetrator is known, will changing should to shall result in cases being done more quickly?

3. Veto of SB 1449 (Leyva) 2018

A bill identical to this one was vetoed last year with the Governor saying:

I am returning Senate Bill 1449 without my signature.

This bill would require the testing of all sexual assault forensic evidence kits within a specified period of time.

The state budget that I signed this year includes a one-time total of $7.5 million General Fund to test rape kits-$1 million to begin conducting an audit of untested kits and $6.5 million to help test the existing known backlog. 

While I fully support the goal of this bill, I believe that we should allow for the completion of the audit mandated by AB 3118 (Chiu)-which I am signing today-as well as for the Department of Justice to further reduce the existing backlog using the recently approved significant funding increase. I would like to allow time for this year's legislative actions to take effect so we can gauge the appropriate next steps and budget accordingly. 

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