BILL ANALYSIS Ó AB 322 Page 1 Date of Hearing: April 12, 2011 Counsel: Stefani Salt ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 322 (Portantino) - As Introduced: February 9, 2011 As Proposed to be Amended in Committee SUMMARY : Requires local law enforcement agencies responsible for taking or collecting rape kit evidence to annually report to the Department of Justice (DOJ) statistical information pertaining to the testing and submission for DNA analysis of rape kits, as specified. Specifically, this bill : 1)Mandates that each local law enforcement agency responsible for taking or collecting rape kit evidence must collect the following information for rape kits collected on or after January 1, 2012: a) The total number of rape kits collected during the preceding calendar year and, of that total, the number of rape kits for which the identity of the assailant is unknown. b) The total number of rape kits tested during the preceding calendar year and, of that total, the number of rape kits for which the identity of the assailant is unknown. c) The total number of rape kits submitted for DNA analysis and, of that total, the number of rape kits for which the identity of the assailant is unknown. d) The number of rape kits that law enforcement has submitted for DNA analysis that remain untested and, of that number, the number of rape kits for which the identity of the assailant is unknown. e) The total number of untested rape kits that were not submitted for DNA analysis in its possession as of January 1 of the reporting year. AB 322 Page 2 2)Provides that each local law enforcement agency responsible for taking or collecting rape kit evidence shall report, by July 1 of each year, the information collected, as specified, during the preceding year to the DOJ. The initial report to the DOJ, as specified, shall be made by July 1, 2013. The reports received by the DOJ are subject to inspection under the California Public Records Act, as specified. 3)Mandates that law enforcement agencies that collect a rape kit, on or after July 1, 2012, in connection with an investigation into an allegation of the crime of rape, shall submit that rape kit for testing within 30 business days of collection to a forensic laboratory. Rape kits collected by a law enforcement agency prior to July 1, 2012, shall be submitted to a forensic laboratory, as specified. 4)Requires the DOJ to establish a reasonable timeframe mandating when local law enforcement agencies shall submit those rape kits collected prior to July 1, 2012, in order to comply with the testing requirements, as specified, that all of those rape kits be tested by January 1, 2014. Notes that nothing in law shall prohibit or prevent local law enforcement agencies from submitting rape kits for testing sooner than deadlines established by the DOJ. 5)Mandates that all rape kits submitted to a forensic laboratory on or after July 1, 2012 must be analyzed within six months after receipt by the laboratory if sufficient staffing and resources are available. 6)States that, by January 1, 2014, the DOJ shall submit to the Governor and both houses of the Legislature a plan for collecting and testing rape kits submitted pursuant to the language of this bill and Government Code provisions. The plan shall review the six-month timeline required for submitting and testing rape kits and shall include, but not be limited to, recommendations as to appropriate changes, if any, to the six-month timeline for completion and analysis of rape kits submitted after July 1, 2012, a summary of the inventory received, as well as requests for funding and resources necessary to meet the established timeline or recommended changes to that timeline. 7)Requires that, by July 1, 2013, each California law enforcement agency shall provide written notice, in a form and AB 322 Page 3 manner prescribed, to the DOJ, stating the number of rape kits in the custody of the law enforcement agency that have not been previously submitted to a laboratory for analysis. By January 1, 2014, appropriate arrangements shall be made between the law enforcement agency and DOJ, to ensure that all rape kits collected prior to July 1, 2012 have been tested. 8)Declares that the failure of a law enforcement agency to submit a rape kit collected on or after July 1, 2012 within 30 business days after receipt shall in no way alter the authority or responsibility of the law enforcement agency to submit a rape kit for testing. 9)Authorizes the DOJ to promulgate rules that prescribe the procedures for the operation of the requirements for testing rape kits, as specified including such emergency regulations as necessary. 10)Sunsets provisions of this bill on July 1, 2017, to be repealed on January 1, 2018, unless a later enacted statute, enacted before January 1, 2018, deletes or extends that date. 11)Finds and declares the following: a) It is the intention of the State of California that all rape kits collected by California law enforcement agencies as evidence of the crime of rape be submitted to a forensic laboratory and tested within designated timeframes. b) A national organization has recently reported that one in six women and one in 33 men will be sexually assaulted in their lifetimes, but only 6% of rapists will ever spend a day in jail. c) Using statistics as reported in 2008 to DOJ it is evident that many California counties are not doing enough to arrest perpetrators of the crime of rape. While the arrest rate for rape in New York City, a city that tests all rape kits, has been reported at 70%; the California county average is only 29.7%. d) Many counties in California have reported arrest rates for the crime of forcible rape that are as low as 0%. There are many counties that record arrests for less than 18% of the forcible rapes that occur in their county. AB 322 Page 4 e) Rape kits are collected after an allegation of rape and contain tangible, direct DNA evidence of the crime committed. Past history has shown that many counties are not processing all the rape kits that are being collected. Los Angeles County and the City of Los Angeles were shown in 2008 to have at least 10,000 unopened rape kits in their evidence lockers. Los Angeles County has committed to testing every rape kit and has seen its arrest rate rise from 23.7% in 2006 to 29.7% in 2008. Testing of all rape kits in California will increase the arrest rate for the crime of rape EXISTING LAW : 1)States that upon 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 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. ĘPenal 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. ĘPenal Code Section 680(c)(2)(A) to AB 322 Page 5 (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. ĘPenal 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. ĘPenal 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 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. ĘPenal 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 AB 322 Page 6 years from the date of the offense. ĘPenal 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. ĘPenal Code Section 803(g)(1) and (h)(1).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "In 2009 the DOJ reported 8,698 forcible rapes in California. The number of arrests reported for 2009 was 2,050. This is a statewide arrest rate of 23.6%. Ten years ago in 1999 the arrest rate was 30.6% (2,887 arrests ? 9,443 forcible rapes = 30.6%). "As reported on the Attorney General's website: In 2009 there were 174,579 violent crimes reported. Of these crimes, 8,698 or 5% were forcible rapes. Of the arrests for violent crime reported in 2009, only 1.7% or 2050 were for forcible rape. "Statewide the arrest rate for reported forcible rapes in 2009 was only 23.6% (2050 arrests divided by 8,698 rapes reported). "A decade ago, when New York City began testing every rape kit, their arrest rate went from 40% to around 70%. If California made arrests on 70% of the reported forcible rapes, we would have made an additional 4,038 arrests in 2009. "As reported in the Los Angeles Times, there were over 10,000 unopened rape kits in Los Angeles County in 2008. ĘThis bill] seeks to shed light on the problem of untested rape kit evidence from sexual assaults and help bring rapists to justice. "Under Ęthis bill], law enforcement agencies will have 30 days after collecting a rape kit to send it off to an approved lab for testing. The testing has to be completed within six months and a report filed with the Department of Justice. In addition, AB 322 addresses the backlog of untested kits. The AB 322 Page 7 bill requires the D.O.J. to establish a timeframe for processing rape kits collected prior to July 1, 2012. " 'It's unconscionable that thousands of rape kits remain unopened and untested across California,' stated Portantino. 'Rape kits hold vital evidence that is crucial to a criminal conviction, while the clock is ticking on bringing justice to victims. It's frustrating to know that a rapist could be walking free and a victim who suffered is further disrespected because a vital piece of evidence went untested.' "The Rape, Abuse and Incest Network reports that 1 in 6 women and 1 in 33 men will be sexually assaulted in their lifetimes, but only 6% of rapists will ever spend a day in jail. Rape kits hold potentially crucial information from the crime scene. DNA evidence from the kits is used to compare samples from known felons in State and Federal databases. If you don't process the evidence, you can't check it against the database. " 'I introduced this bill to protect the women and children in our communities by making sure that our law enforcement agencies are doing all they can to provide justice for the victims of these horrible crimes,' explained Portantino. 'As we've seen over and over again in news reports, evidence from rape kits sits untested in police lockers throughout the state. And, while police and sheriff's departments in Los Angeles have made strides in processing some 10,000 backlogged kits, this bill will ensure that in the future, rape kits are opened and processed in a timely manner.' " 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 AB 322 Page 8 convincingly corroborate the victim's allegations. ĘPenal Code Section 803(f)(1) to (3).] A criminal complaint may also be filed for the above-mentioned sex offenses any time before 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. ĘPenal 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. ĘPenal 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), of the 2009-10 Legislative Session, and AB 718 (Fuller), of the 2007-08 Legislative Session, both sought to remove the requirement that a sample be tested in a specific period of time as 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 a 2009 statement from 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)Veto Messages of Previous Similar Legislation : AB 558 (Portantino) and AB 1017 (Portantino), both from the 2009-10 AB 322 Page 9 Legislative Session, were similar in their final form to this legislation. The Governor stated: "This bill is similar to AB 1017 (2009), which I also vetoed. Unfortunately, while this measure is well intended, it continues to ignore the precarious fiscal conditions of California's crime laboratories. Indeed, as noted by the California Crime Laboratory Review Task Force in its 2009 report, DNA, fingerprints, and firearms testing have been identified as areas where requests often exceed staffing capabilities. The Task force also noted that in order to eliminate the backlog for DNA testing, an additional 282 analysts would have to be funded. Unfortunately, AB 558 will not provide any additional funding or staffing for crime laboratories and will instead divert resources away from testing to sending reports to the Department of Justice. In this time of fiscal crisis, I cannot condone this shift in priorities." 5)Arguments in Opposition : According to the California Law Enforcement Association of Records Supervisors and the California State Sheriffs' Association , "We recognize and share your intent to ensure that rape kits are analyzed and processed in order to identify and convict offenders of these heinous crimes. However, doing so by requiring law enforcement agencies to provide statistics to DOJ would place significant cost burdens on these agencies in terms of resources and personnel and consequently, would inadvertently hamper our abilities to process these kits. It is for these reasons that the Governor vetoed AB 558, a similar version of this bill last year. "Local law enforcement agencies are grappling with significant budget cuts over the last several years while trying to maintain critical services. Adding an additional reporting requirement would divert limited resources away from providing current services. "The additional costs associated with this new requirement would be detrimental to the provision of critical services we currently provide." 6)Prior Legislation : a) AB 558 (Portantino), of the 2009-10 Legislative Session, AB 322 Page 10 was vetoed. AB 558 would have required every local law enforcement agency responsible for taking or processing rape evidence annually report to the DOJ the total number of rape kits received and tested during the preceding calendar year, the total number of untested rape kits in its possession as of January 1 of the reporting year, and the total number of rape kits destroyed during the preceding calendar year and the number of rape kits that law enforcement has requested be tested that remain untested, and in each case, the number of rape kits for which the identity of the suspect is unknown and the number of rape kits for which the identity is contested. b) AB 1017 (Portantino), of the 2009-10 Legislative Session, was vetoed. AB 1017 would have required that beginning July 1, 2012, and annually thereafter until July 1, 2016, each local law enforcement agency responsible for taking or collecting rape kit evidence shall annually report to the DOJ various statistical information pertaining to the testing and submission for DNA analysis of rape kits, as specified. REGISTERED SUPPORT / OPPOSITION : Support American Federation of State, County and Municipal Employees Board of Directors, Junior League of Los Angeles Californians Aware State Public Affairs Committee of the Junior Leagues of California Opposition California Law Enforcement Association of Records Supervisors California State Sheriffs' Association Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744