BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 322
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          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.









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          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 








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            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.








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             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 








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            (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
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               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 








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            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 








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            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 








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            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, 








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               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