BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
3
2
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AB 322 (Portantino)
As Amended June 28, 2011
Hearing date: July 5, 2011
Penal Code
MK:mc
FORENSIC EVIDENCE: RAPE KITS
HISTORY
Source: Author
Prior Legislation: AB 558 (Portantino) - vetoed, 2010
AB 1017 (Portantino) - vetoed, 2009
Support: Junior League of California State Public Affairs
Committee; Californians Aware; Junior League of Los
Angeles; Hollywood NOW; City of West Hollywood; AFSCME;
Los Angeles County Democratic Party; Crime Victims
United of California
Opposition:California State Sheriffs' Association; California
Law Enforcement Association of Records Supervisors,
Inc.; California Association of Crime Lab Directors;
California Peace Officers' Association
Assembly Floor Vote: Ayes 61 - Noes 13
KEY ISSUES
SHOULD LAW ENFORCEMENT AGENCIES THAT TAKE OR PROCESS RAPE KIT
EVIDENCE BE REQUIRED TO REPORT CERTAIN INFORMATION CONCERNING THE
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TESTING AND DESTRUCTION OF RAPE KITS TO THE DEPARTMENT OF JUSTICE,
AS SPECIFIED?
SHOULD THE DEPARTMENT OF JUSTICE SET UP PILOT PROJECTS IN NINE
SPECIFIED COUNTIES TO TEST EVERY RAPE KIT IN THOSE COUNTIES?
PURPOSE
The purpose of this bill is to require law enforcement agencies
that take or process rape kit evidence to report specified
information concerning the testing and destruction of that
evidence to the Department of Justice, and to create pilot
projects in nine counties to have the Department of Justice test
all rape kits in those counties to determine if such testing
increases their arrest rates in rape cases.
Existing law 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.
(Penal Code � 680(c)(1).)
Existing law 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
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entered into the Department of Justice (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 � 680(c)(2)(A) to (C).)
Existing law 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 � 680(c)(3).)
Existing law provides 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 � 680(d).)
Existing law 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.
(Penal Code
� 680(h).)
Existing law provides 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
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conditions are met:
The crime is one that is described in the sex
offense registration statute; and,
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 � 803(g)(1)(A)(B).)
Existing law 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 � 803(g)(1) and (h)(1).)
This bill provides that each local law enforcement agency
responsible for taking or collecting rape kit evidence shall
collect the following information for rape kits collected on or
after January 1, 2012:
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.
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.
The total number of rape kits submitted for DNA
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analysis and, of that total, the number of rape kits
for which the identity of the assailant is unknown.
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.
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.
This bill 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
pursuant to this section during the preceding year to the
Department of Justice. The initial report to the department
pursuant to this subdivision shall be made by July 1, 2013.
This bill provides that the reports received by the department
pursuant to subdivision (b) are subject to inspection under the
California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
This bill provides that this section shall remain operative only
until July 1, 2017, and shall be repealed on January 1, 2018,
unless a later enacted statute that is enacted before January 1,
2018, deletes or extends that date.
This bill provides that the Department of Justice shall
establish a pilot project in nine California counties to open
and test all rape kits in those counties.
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This bill provides that the nine counties chosen for inclusion
shall be counties with an arrest rate of less than 12 % for the
crime of forcible rape as reported to the Attorney General's
office for the reporting periods of 2007-2009.
This bill provides that the following counties shall be included
for the pilot project: Alpine; Amador; Colusa; El Dorado;
Nevada; Plumas; Shasta; Tehama; and Tuolumne.
This bill provides that the Department of Justice shall, in
cooperation with the pilot project county, establish a process
regarding the collection, storage and testing of raped kits
collected in the pilot project county. It is the intent of the
Legislature that all rape kits that are collected in the county
after a date established by the department, shall be sent to a
forensic laboratory of the department for analysis and testing.
The department shall test every rape kit collected by a pilot
project county for a crime committed during the period of the
pilot project.
This bill provides that the purpose of this pilot project is to
determine whether counties with the lowest arrest rates in
California for the crime of forcible rape can bring justice to
victims by increasing their arrest rates by having all rape kits
that are collected in the county tested for evidence of crime.
This bill provides the effectiveness of the pilot project shall
be measured by examining county statistics submitted to the
Attorney General's office pursuant to existing law that requires
the reporting of the number of forcible rapes committed in that
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county and the number of arrests for forcible rape committed in
that county.
This bill provides that the pilot project shall be inoperative
on January 1, 2015, unless the Department of Justice extends the
program until January 1, 2016.
This bill contains legislative findings and declarations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
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decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
When it was revealed in 2008 that the Los Angeles area
had over 10,000 rape kits that had not been tested,
both the City and County of Los Angeles made the
decision to count and test these kits. Unfortunately,
not every law enforcement agency in California has
made this commitment and we have no guarantee that all
rape kits collected in Los Angeles in the future will
be tested.
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. Penal Code Section 803 requires that when an
offense is committed after January 1, 2001 and the
rape kit is 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. The truth is that thousands of
rape kits in California are not being tested within
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this two year time frame.
When pressed, cities and counties are now admitting
that they are not processing all of the rape kits they
collect for evidence of crime. It is a travesty to
permit a victim of this terrible crime to be exposed
to this extremely invasive examination of their bodies
to collect evidence of crime and to not process it.
Let me share with you the following statistics.
In 2009 the local law enforcement agencies reported to
the Department of Justice that there were 8,698
forcible rapes in California. During this same time,
these agencies reported that they were only able to
make 2,050 arrests for forcible rape for an arrest
rate of 23.6%.
By comparison, New York City a decade ago reported an
arrest rate of around 40%. Once that city adopted a
policy of testing every rape kit, their arrest rate
rose to about 70% for the over 1,300 rapes that were
reported.
Based upon 2009 statistics, an arrest rate of 70% in
California would mean the arrest and prosecution of an
addition 4,000 individuals for the crime of forcible
rape.
AB 322 will increase California arrests of rapists by
requiring local law enforcement agencies to report to
the Department of Justice the number of rape kits they
collect, the number that are the result of stranger
rape and the number of these kits they test. The
information required to be reported by AB 322 is
currently collected on California Emergency Management
Agency Form 2-923 that is filled out whenever a rape
kit is collected. Compliance will be extremely easy
so costs to local agencies will be minimal.
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As passed by the Assembly Health Committee, AB 322
required all local law enforcement agencies that
collect a rape kit on or after July 1, 2012, to submit
that rape kit to a forensic laboratory for testing
within 30 days of collection. The forensic laboratory
would then have 180 days to open and test the kit.
Due to associated mandate costs, this provision was
amended out in Assembly Appropriations. If the
authors are able to identify a dedicated source of
funding, we intend to amend the testing portion back
into the bill.
As reported on the Attorney General's website: In
2009 there were 174,579 violent crimes reported. 5%
of these crimes or 8,698 were forcible rapes. Of the
arrests for violent crime reported in 2009, only 1.7%
or 2,050 were for forcible rape. It is evident that
California law enforcement agencies are not making the
arrest of rapists a high priority, especially when
they are not testing rape kits for evidence. We
unfortunately do not know how many kits each year are
condemned to languish in evidence lockers. The
reporting provisions of AB 322 will give us an idea of
the problem.
AB 322 will not count backlogs of rape kits, it will
only ask for statistics that are collected after the
effective date of the measure.
The California State Sheriff's Association is opposed.
They have repeatedly stated that "? requiring backlog
statistics to DOJ would place significant cost burdens
on these agencies in terms of resources and personnel
and consequently, would inadvertently hamper our
ability to process rape kits." There is no
requirement that they count "backlogs" of rape kits in
their evidence lockers. The only rape kits that are
to be reported are those collected after the bill
becomes law. There will be no costs or they will be
negligible because:
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1. The rape kits can be counted as they are
collected.
2. The statistics to be reported are already
currently collected and can easily be taken directly
from the California Emergency Management Agency Form
2-923 that must be completed whenever a rape kit is
taken.
3. Each law enforcement agency must log and
maintain rape kits as evidence of a crime and observe
the chain of custody or it will not be admissible in a
criminal case. These agencies have easy access to the
information to be reported. All that remains is for
them to electronically transmit the totals to the DOJ.
4. Law enforcement agencies already report to the
DOJ the numbers of forcible rapes committed in their
jurisdictions and the numbers of arrests they make for
the crime of forcible rape. Reporting of rape kits is
a reasonable extension of current reporting
requirements.
Because of fiscal constraints, AB 322 does not require
the Department of Justice to perform a study on the
statistics that will be collected. It has been
estimated that such a study performed by the DOJ would
cost over $250,000. The California Coalition Against
Sexual Assault (CalCASA) and Human Rights Watch have
both indicated that they will be requesting these
statistics from DOJ as a California Public Records Act
request and will review, study and publish the
results. In effect, private organizations will be
performing the necessary studies envisioned by AB 322
at no cost to the State of California.
Receiving bipartisan support, a similar bill last year
was vetoed by Governor Schwarzenegger at the request
of the California State Sheriff's Association. Last
year, the first letter of opposition from a County
Sheriff was from Shasta County. According to
statistics reported on the California Attorney
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General's website; over the past three years Shasta
County reported 363 forcible rapes but only 17 arrests
for an arrest rate of 4.7%. Over this three year
period, this is one forcible rape for every 500
residents in the county. The records of many other
counties are just as bad. We need to do better.
2. Report to the Department of Justice
This bill would require local law enforcement agencies
responsible for rape kit evidence to collect specified aggregate
information about rape kits, detailed above, and to report that
information to the Department of Justice, as specified. This
bill is nearly identical to AB 558 (Portantino) which was vetoed
in 2010.
3. Background: Processing of Rape Kits
In the fall of 2008, then-Los Angeles City Controller Laura
Chick issued a report citing a significant backlog of rape kits
that had not been DNA tested. As explained in an October 21,
2008, article in the Los Angeles Times:
Los Angeles police officials have allowed the deadline
for prosecuting as many as 200 potential sexual
assault cases to pass without testing DNA evidence
that might have resulted in a suspect's
identification, according to a city audit released
today.
The 200 cases were part of an overall backlog of 7,000
sexual assault test kits that have not been examined
by the LAPD. Each kit contains a potential genetic
road map to the perpetrator of a crime. . . .
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According to the city audit, there are 217 rape kits
that have sat on the shelves in LAPD property rooms
that are beyond the 10-year statute in which to
prosecute the crimes. . . .
Auditors also found that the LAPD was failing to
comply with a state law that requires sexual assault
victims to be notified by the police if their rape
kits are not tested within a two-year period. If
authorities had made those notifications, the statute
of limitations would have been extended.<1>
A news article from March of 2009 further described the
situation in Los Angeles:
Since the controversy erupted, LAPD detectives have
counted a total of 9,911 sexual-assault cases in the
freezers. Of those, 4,718 were previously tested and
5,193 were not tested. Of the untested cases, 403
were "stranger rapes," in which DNA testing could have
netted a solid suspect by now; 1,184 were "cleared by
arrest," making DNA tests unnecessary; and 1,796 were
rejected by D.A. Cooley, usually because of a
hard-to-prosecute "he said, she said" situation or
because the victim refused to cooperate. Now, with
200 rape cases left for so long that they are too old
to prosecute, and an unknown number of crimes lurking
in the other long-frozen rape kits, it seems doubtful
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<1> 200 sex assault cases pass prosecution deadline before LAPD
tested DNA kits (Los Angeles Times, Oct. 21, 2008).
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L.A. will ever match the science-based crime-fighting
of New York City.<2>
4. Statute of Limitations for Sex Offenses
There are a number of statutes of limitations that may apply in
a sex offense case depending on the specific facts and 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
convincingly corroborate the victim's allegations. (Penal Code
� 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.
(Penal Code � 801.1(a) to (b).) DNA evidence in specified sex
---------------------------
<2> DNA Deep Freeze (LA Weekly, March 18, 2009). ("New York
stood out as a big metropolitan area that's doing it right. The
Los Angeles Police Department stood out too - as what critics
see as a DNA disaster zone. L.A. is so many years behind New
York's Office of the Medical Examiner in testing long-stored DNA
from sexual-assault cases that the LAPD would need millions of
dollars - and a top-level initiative from Chief William Bratton
- to ever hope to catch up. . . . In stark contrast to L.A.,
New York tests all its DNA evidence, including that recovered
from burglary scenes, and performs "touch DNA" tests - analyzing
such minuscule traces that they can match the sweat left in
fingerprints.")
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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
� 803(g)(1).)
5. 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) (failed in
Assembly Public Safety, 2009) and AB 718 (Fuller), (held in
Assembly Appropriations, 2007) 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."
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6. Pilot Project
This bill requires the Department of Justice to create a pilot
project consisting of nine counties in which the Department of
Justice will test every rape kit in those counties for the
period of the project. The counties chosen were those with the
lowest arrest rates in forcible rape cases in 2007-2009. After
the pilot project, the Department of Justice will determine if
testing all the rape kits increased the arrest rate in these
cases.
SHOULD A PILOT PROJECT CONSISTING OF NINE COUNTIES IN WHICH ALL
RAPE KITS WILL BE TESTED BE CREATED?
7. Support
AFSCME supports this bill stating:
Currently, California has an arrest rate of only 23.6%
of reported rapes. New York City has a remarkably
higher arrest rate of 70% because they test every rape
kit that is collected. By California law, when a rape
kit is taken, each local law enforcement agency must
fill out an Office of Criminal Justice Planning form
923. In many cases, rape kits are conducted, but
instead of being sent to the laboratory, they are kept
in evidence lockers indefinitely. The failure to test
rape kits in California directly explains why our
arrest rate on rape cases is so low.
8. Opposition
The California State Sheriffs' Association opposes this bill
stating:
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
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agencies to provide statistics to DOJ would place
significant cost burdens on these agencies in terms of
resources
and personnel and consequently, and would
inadvertently hamper our ability to process these
kits. The focus should be on building the capacity
and resources for processing these kits rather than
using very limited resources to fulfill reporting
requirements.
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