BILL NUMBER: AB 1017 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Members Portantino and Brownley
FEBRUARY 27, 2009
An act to amend Section 680 of the Penal Code, relating to sexual
assault crimes.
LEGISLATIVE COUNSEL'S DIGEST
AB 1017, as amended, Portantino. Sexual assault crimes.
Existing law, the Sexual Assault Victims' DNA Bill of Rights,
authorizes a law enforcement agency investigating certain felony sex
offenses to, upon the request of the victim, and subject to the
commitment of resources, inform the victim whether or not a DNA
profile was obtained from the testing of the rape kit evidence or
other crime scene evidence from their the
case, whether or not that information had
has been entered into the Department of Justice Data Bank
of case evidence, and whether or not there is a match between the DNA
profile developed from the rape kit evidence or other crime scene
evidence and a DNA profile contained in the Department of Justice
Convicted Offender DNA Data Base, as specified. Existing law also
requires that the victim be given written notification by the law
enforcement agency if the law enforcement agency elects not to
perform DNA testing of the rape kit evidence or other crime scene
evidence, or intends to destroy or dispose of the rape kit evidence
or other crime scene evidence prior to the expiration of the statute
of limitations, as specified.
This bill would require DNA analysis of rape kit evidence in
a timely manner to ensure the longest possible statute of limitation,
as specified, and no later than 6 months after the rape kit is
obtained by the law enforcement agency. The bill would delete
language subjecting certain victim rights to the commitment of
sufficient resources to respond to requests. The bill
would require a law enforcement agency, if it does not analyze
the DNA evidence of an assailant of a sexual assault victim within 6
months of obtaining the rape kit evidence where the
assailant's identity is an issue , to inform the victim of
this fact. The bill would also require each law enforcement agency
responsible for taking or processing rape kit evidence to annually
report to the Department of Justice the total number of rape kits in
its possession that it has not tested or analyzed, as specified.
The bill would further require each law enforcement agency to
report to the Department of Justice the total number of sexual
assault crimes reported in its jurisdiction that would require the
offender convicted of the crime to register as a sex offender. By
imposing new duties on local government agencies, the bill would
impose a state-mandated local program.
Existing law provides that the sole civil or criminal remedy
available to a sexual assault victim for a law enforcement agency's
failure to fulfill its responsibilities under the Sexual Assault
Victims' DNA Bill of Rights is standing to file a writ of mandamus to
require compliance with specified victim notification provisions.
This bill would instead provide that a sexual assault victim or
the designated sexual assault victim advocate shall have standing to
file a writ of mandamus to require compliance with any of the
provisions addressed in the bill.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 680 of the Penal Code is amended to read:
680. (a) This section shall be known as and may be cited as the
"Sexual Assault Victims' DNA Bill of Rights."
(b) The Legislature finds and declares all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification
analysis is a powerful law enforcement tool for identifying and
prosecuting sexual assault offenders.
(2) Victims of sexual assaults have a strong interest in the
investigation and prosecution of their cases.
(3) Law enforcement agencies have an obligation to victims of
sexual assaults in the proper handling, retention and timely DNA
testing of rape kit evidence or other crime scene evidence and to be
responsive to victims concerning the developments of forensic testing
and the investigation of their cases.
(4) The growth of the Department of Justice's Cal-DNA databank and
the national databank through the Combined DNA Index System (CODIS)
makes it possible for many sexual assault perpetrators to be
identified after their first offense, provided that rape kit evidence
is analyzed in a timely manner.
(5) Timely DNA analysis of rape kit evidence is a core public
safety issue affecting men, women, and children in the State of
California. It is the intent of the Legislature, in order to
further public safety, to encourage DNA analysis of rape kit
evidence within the time limits imposed by Section 803.
California.
(6)
(c) A law enforcement agency assigned to investigate a
sexual assault offense specified in Section 261, 261.5, 262, 286,
288a, or 289 should shall perform DNA
testing of rape kit evidence or other crime scene evidence in a
timely manner in order to assure the longest possible statute of
limitations, pursuant to Section 803.
(7)
(d) For the purpose of this section, "law enforcement"
means the law enforcement agency with the primary responsibility for
investigating an alleged sexual assault.
(c)
(e) (1) Upon the request of a sexual assault victim the
law enforcement agency investigating a violation of Section 261,
261.5, 262, 286, 288a, or 289 may shall
inform the victim of the status of the DNA testing of the rape kit
evidence or other crime scene evidence from the victim's case. The
law enforcement agency may, at its discretion, require that the
victim's request be in writing. The law enforcement agency may
respond to the victim's request with either an oral or written
communication, or by electronic mail, if an electronic mail address
is available. This subdivision does not require that the law
enforcement agency communicate with the victim or the victim's
designee regarding the status of DNA testing absent a specific
request from the victim or the victim's designee.
(2) Sexual assault victims have the following rights:
(A) 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.
(B) 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 Data Bank of
case evidence.
(C) 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 Department of Justice Convicted Offender DNA Data Base, provided
that disclosure would not impede or compromise an ongoing
investigation.
(3) This subdivision is intended to encourage
require law enforcement agencies to notify victims of
information that is in their possession. It is not intended to affect
the manner of or frequency with which the Department of Justice
provides this information to law enforcement agencies.
(d) If
(f) DNA analysis of rape kit evidence
shall be completed no later than six months after the rape kit is
obtained by the law enforcement agency. However, if the law
enforcement agency does not analyze the DNA evidence for the
assailant of a victim of a sexual assault offense specified in
Section 261, 261.5, 262, 286, 288a, or 289 ,
within six months of obtaining the rape kit evidence where
the assailant's identity is in issue , the victim shall be
informed, either orally or in writing, of that fact by the law
enforcement agency.
(e)
(g) If the law enforcement agency intends to destroy or
dispose of rape kit evidence or other crime scene evidence from an
unsolved sexual assault case prior to the expiration of the statute
of limitations as set forth in Section 803, a victim of a violation
of Section 261, 261.5, 262, 286, 288a, or 289 shall be given written
notification by the law enforcement agency of that intention.
(f)
(h) Written notification under subdivision (d)
or (e) (f) or (g) shall be made at least 60
days prior to the destruction or disposal of the rape kit evidence or
other crime scene evidence from an unsolved sexual assault case
where the election not to analyze the DNA or the destruction or
disposal occurs prior to the expiration of the statute of limitations
specified in Section 803.
(g)
(i) A sexual assault victim may designate a sexual
assault victim advocate, or other support person of the victim's
choosing, to act as a recipient of the above information required to
be provided by this section.
(h)
(j) It is the intent of the Legislature that a law
enforcement agency responsible for providing information under
subdivision (c) (e) do so in a timely
manner and, upon request of the victim or the victim's designee,
advise the victim or the victim's designee of any significant changes
in the information of which the law enforcement agency is aware. In
order to be entitled to receive notice under this section, the victim
or the victim's designee shall keep appropriate authorities informed
of the name, address, telephone number, and electronic mail address
of the person to whom the information should be provided, and any
changes of the name, address, telephone number, and electronic mail
address, if an electronic mailing address is available.
(i)
(k) A defendant or person accused or convicted of a
crime against the victim shall have no standing to object to any
failure to comply with this section. The failure to provide a right
or notice to a sexual assault victim under this section may not be
used by a defendant to seek to have the conviction or sentence set
aside.
(j)
(l) Each law enforcement agency responsible for taking
or processing rape kit evidence shall annually report to the
Department of Justice the total number of rape kits in its possession
that it has not tested or analyzed. The law enforcement agency shall
include in its report to the department the number of untested or
unanalyzed rape kits in its possession by year, covering at least the
previous five years.
(k)
(m) Each law enforcement agency shall annually report
to the Department of Justice the total number of sexual assault
crimes reported in its jurisdiction that would require an offender
convicted of the crime to register as a sex offender pursuant to
Section 290. This information shall be provided to the department by
the code section or sections violated.
(l) The sole civil or criminal remedy available to a sexual
assault victim for a law enforcement agency's failure to fulfill its
responsibilities under this section is
(n) A sexual assault victim or the
designated sexual assault victim advocate has standing to file
a writ of mandamus to require compliance with subdivision
(d) or (e) this section .
SEC. 2. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.