BILL ANALYSIS
AB 1017
Page 1
Date of Hearing: April 21, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1017 (Portantino) - As Amended: April 2, 2009
As Proposed to be Amended in Committee
SUMMARY : Requires a law enforcement agency to test
deoxyribonucleic acid (DNA) rape kits after the rape kit is
obtained or, if the law enforcement agency has not tested the
kit within six months, notify a sexual assault victim orally or
in writing of that fact. Specifically, this bill :
1)Requires a law enforcement agency to inform the victim of the
status of the DNA testing in his or her case when requested.
2)Mandates each law enforcement agency responsible for taking or
processing rape kit evidence to annually report to the
Department of Justice (DOJ) 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 DOJ the
number of untested or unanalyzed rape kits in its possession
by year, covering at least the previous five years.
3)Requires each law enforcement agency to report to the DOJ the
total number of sexual assault crimes reported in its
jurisdiction that would require the offender to register as a
sex offender, as specified.
EXISTING LAW :
1)States that upon the request of a sexual assault victim the
law enforcement agency investigating a violation of specified
violent sex offenses, may 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. Nothing in this subdivision requires that the law
AB 1017
Page 2
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. [Penal Code
Section 680(c)(1).]
2)Provides that subject to the commitment of sufficient
resources to respond to requests for information, sexual
assault victims have the following rights: the right to be
informed whether or not a DNA profile of the assailant was
obtained from the testing of the rape kit evidence or other
crime scene evidence from their case; the right to be informed
whether or not the DNA profile of the assailant developed from
the rape kit evidence or other crime scene evidence has been
entered into the DOJ Data Bank of case evidence; and, the
right to be informed whether or not there is a match between
the DNA profile of the assailant developed from the rape kit
evidence or other crime scene evidence and a DNA profile
contained in the DOJ Convicted Offender DNA Data Base,
provided that disclosure would not impede or compromise an
ongoing investigation. [Penal Code Section 680(c)(2)(A) to
(C).]
3)States this law is intended to encourage law enforcement
agencies to notify victims of information which is in their
possession. It is not intended to affect the manner of or
frequency with which the DOJ provides this information to law
enforcement agencies. [Penal Code Section 680(c)(3).]
4)Mandates that if the law enforcement agency elects not to
analyze DNA evidence within the time limits established by
provisions of law related to the statute of limitations, a
victim of a sexual assault offense, as specified, where the
identity of the perpetrator is in issue, must be informed,
either orally or in writing, of that fact by the law
enforcement agency. [Penal Code Section 680(d).]
5)States legislative intent that a law enforcement agency
responsible for providing information, as specified, does so
in a timely manner and, upon request of the victim or the
victim's designee, advises 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
AB 1017
Page 3
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. [Penal Code Section 680(h).]
6)Provides notwithstanding any other limitation of 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 testing if both of
the following conditions are met:
a) The crime is one that is described in the sex offense
registration statute; and,
b) The offense was committed prior to January 1, 2001 and
biological evidence collected in connection with the
offense is analyzed for DNA type no later than January 1,
2004; or the offense was committed on or after January 1,
2001 and biological evidence collected in connection with
the offense is analyzed for DNA type no later than two
years from the date of the offense. [Penal Code Section
803(g)(1)(A)(B).]
7)Provides that a criminal complaint may be filed within one
year after a report to a law enforcement agency that a person
was the victim of a sexual offense while under the age of 18
years. To file such a complaint, the applicable limitation
period must have expired and the alleged crime must have
involved substantial sexual conduct corroborated by evidence,
as specified. [Penal Code Section 803 (g)(1) and (h)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Last year, it
was discovered that law enforcement agencies in Los Angeles
City and County had thousands of rape kits in their evidence
freezers that had not been tested. There were even some kits
that had been held in excess of the 10-year statute of
limitations for the crime of rape. Since that time, both the
City and County of Los Angeles have committed themselves to
opening and testing of every rape kit in their evidence rooms.
"A rape kit is the physical evidence, often including DNA, that
AB 1017
Page 4
is collected after a sexual assault. Timely testing of rape
kits is essential in identifying and convicting perpetrators
who are frequently repeat offenders. A representative of
women's issues has been quoted as saying, 'When a rape is
committed, the victim's body is the crime scene. They consent
to its search in the same way that a person who has suffered a
property crime consents to a search of their home, though it's
themselves these victims are opening to inspection.' To treat
evidence gathered at that excruciating moment in their lives
by not testing it, she said, 'betrays the victim's faith in
the criminal justice system.'
"It is vital that evidence of these crimes be processed. The
New York City Police Department in 1996 had over 17,000
untested rape kits in its possession. At this time, they only
had a capacity to test 100 to 150 rape kits a year while they
were getting about 1,600 new kits each year. They made the
commitment to test the backlog of rape kits and all kits
received in the future. After their backlog of kits were
tested, they discovered 2,000 'hits' - or DNA matches -
leading to the solving of 154 cold rape cases, including the
heinous attacks on two teenagers by a serial rapist.
"California is not doing everything it can to find and prosecute
rapists and sexual predators. AB 1017 will ensure that
investigators and prosecutors have the information and tools
to do this by requiring all rape kits to be tested."
2)Statute of Limitations under Current Law for Sex Offenses :
Sex offenses have various statutes of limitations depending on
the specific facts and certain offenses. A criminal complaint
may be filed within one year of the date of a report to law
enforcement by any person who, while under the age of 18, was
the victim of rape, sodomy, child molestation, forcible oral
copulation, continuous sexual abuse of a child, sexual
penetration and fleeing the state with the intent to avoid
prosecution for a specified sex offense. However, the
existing statute of limitations must have expired, the crime
must have involved substantial sexual conduct and there must
be independent evidence to corroborate the victim's
allegations. If the victim is 21 years of age or older at the
time of the report, the independent evidence shall clearly and
convincingly corroborate the victim's allegations. [Penal
Code Section 803(f)(1) to (3).] A criminal complaint may also
be filed for the above-mentioned sex offenses any time before
AB 1017
Page 5
the victim's 28th birthday when the offense is alleged to have
occurred when the victim was under the age of 18. Also, if
that time period has elapsed, any prosecution for a felony
registerable sex offense may commence 10 years after the date
of commission. [Penal Code Section 801.1(a) to (b).] DNA
evidence in specified sex offense cases may also toll the
statute of limitations. A criminal complaint may be filed
within one year of the time in which a suspect is conclusively
identified by DNA. [Penal Code Section 803(g)(1).]
3)Timeframe for Testing DNA : Existing law requires DNA
collected in sex assault cases to be tested in a certain
period of time in order to preserve the statute of limitations
for the crime. When an offense is committed before January 1,
2001 but tested by January 1, 2004 or if the offense is
committed after January 1, 2001 and tested within two years of
collection, the statute of limitation remains stayed and a
prosecution must commence within one year of conclusively
identifying a suspect. AB 383 (Lieu), pending hearing by the
Assembly Appropriations Committee, and AB 718 (Fuller), of the
2007-08 Legislative Session, both sought to remove the
requirement a sample be tested in a specific period of time
because the DNA backlog was so significant DOJ and local law
enforcement are not able to test in time to preserve the
statute of limitations. According to the Los Angeles County
Sheriff's Department, "One of the biggest problems facing the
criminal justice system today is the substantial backlog of
unanalyzed DNA samples and biological evidence from crime
scenes, especially in sexual assault cases. Too often, crime
scene samples wait unanalyzed in law enforcement or crime lab
storage facilities. Timely analysis of these samples and
placement into DNA database can avert tragic results.
Currently, there are over 10,000 sexual assault rape kits
awaiting DNA processing in Los Angeles County alone. A recent
Los Angeles City Auditor report found there are thousands of
rape kits awaiting DNA processing in LAPD evidence lockers.
At the Los Angeles County Sheriff's Department, we have nearly
5,000 rape kits awaiting DNA processing in our evidence
lockers."
4)Related Legislation : AB 383 (Lieu) extends the limitation on
the time period for testing DNA in specified sex crimes cases
committed after January 1, 2001, as specified, from two to
five years. AB 383 is pending hearing by the Assembly
Committee on Appropriations.
AB 1017
Page 6
5)Prior Legislation : AB 718 (Fuller), of the 2007-2008
Legislative Session, would have deleted the time frame in
which DNA evidence must be tested after it is collected in
order to preserve the statute of limitations in sex offense
cases, as specified. AB 718 was held on the Assembly
Appropriations' Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744