BILL NUMBER: AB 1017 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY APRIL 23, 2009
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Members Portantino and Brownley
FEBRUARY 27, 2009
An act to amend Section 680 add and repeal
Section 680.1 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 the case, whether or not that
information 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. 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 these notification
provisions.
This bill would require DNA analysis of rape kit evidence to be
completed after the rape kit is obtained by the law enforcement
agency. The bill would give a sexual assault victim standing to file
a writ of mandamus to require compliance with these provisions. 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, 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.
This bill would require law enforcement agencies responsible for
taking or processing rape kit evidence to annually report information
pertaining to the number of rape kits received, tested, and
destroyed, to the Department of Justice, as specified. The bill would
also require each law enforcement agency to 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, as specified. These
provisions would become inoperative on July 1, 2015, and would be
repealed on January 1, 2016.
By imposing additional reporting duties on local law enforcement
agencies, this bill would impose a state-mandated local program.
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 680.1 is added to the
Penal Code , to read:
680.1. (a) Each law enforcement agency responsible for taking or
processing rape kit evidence shall annually report, by July 1 of each
year, the following to the Department of Justice:
(1) The total number of rape kits received during the preceding
calendar year.
(2) The total number of rape kits tested during the preceding
calendar year.
(3) The total number of untested rape kits in its possession as of
January 1 of the reporting year.
(4) The total number of rape kits destroyed during the preceding
calendar year.
The initial report to the department pursuant to this subdivision
shall include available statistics for the previous five years.
(b) 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.
The report shall be provided to the department in a form that reports
the crimes by the code section violated.
(c) This section shall remain operative only until July 1, 2015,
and shall be repealed on January 1, 2016, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
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.
(c) A law enforcement agency assigned to investigate a sexual
assault offense specified in Section 261, 261.5, 262, 286, 288a, or
289 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.
(d) For the purpose of this section, "law enforcement" means the
law enforcement agency with the primary responsibility for
investigating an alleged sexual assault.
(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 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 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.
(f) DNA analysis of rape kit evidence shall be completed 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, the victim shall be informed, either
orally or in writing, of that fact by the law enforcement agency.
(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.
(h) Written notification under subdivision (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.
(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.
(j) It is the intent of the Legislature that a law enforcement
agency responsible for providing information under subdivision(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.
(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.
(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.
(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.
(n) 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 standing to file a writ of
mandamus to require compliance with subdivision (f) or (g).
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.