BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1517
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          Date of Hearing:   March 25, 2014
          Counsel:        Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                 AB 1517 (Skinner) - As Introduced:  January 15, 2014

           
          SUMMARY  :  Sets timelines for law enforcement agencies and crime  
          labs to perform and process deoxyribonucleic acid (DNA) testing  
          of rape kit evidence.  Specifically,  this bill  :

          1)Provides that a law enforcement agency assigned to investigate  
            a sexual assault offense, as specified, should submit sexual  
            assault forensic evidence to the crime lab as soon as  
            practically possible, but no later than five days after being  
            booked into evidence.

          2)States that a crime lab should process evidence, create DNA  
            profiles when able, and upload qualifying DNA profiles into  
            the Combined DNA Index System (CODIS) as soon as practically  
            possible, but no later than 30 days after submission by a law  
            enforcement agency.

          3)Requires a law enforcement agency to inform victims of certain  
            sexual assault offenses, whether or not the identity of the  
            perpetrator is in issue, if the law enforcement agency elects  
            not to analyze DNA evidence within certain time limits.

           EXISTING LAW  :  

          1)Establishes the Sexual Assault Victims' DNA Bill of Rights  
            which provides victims of sexual assault with 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  








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               Department of Justice (DOJ) Data Bank of case evidence; and

             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 DOJ Convicted Offender DNA Data  
               Base, provided that disclosure would not impede or  
               compromise an ongoing investigation.  (Pen. Code,  680,  
               subd. (c)(2).)

          2)States the intent of the Legislature that a law enforcement  
            agency assigned to investigate specified sexual assault  
            offenses should 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.  (Pen.  
            Code,  680, subd. (b).)

          3)States if the law enforcement agency elects not to analyze DNA  
            evidence within the established time limits, a victim of a  
            sexual assault offense as specified, where the identity of the  
            perpetrator is in issue, shall be informed, either orally or  
            in writing, of that fact by the law enforcement agency.  (Pen.  
            Code,  680, subd. (d).)

          4)Requires, 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, a victim of sexual assault, as  
            specified, to be given written notification by the law  
            enforcement agency of that intention.  (Pen. Code,  680,  
            subd. (e).)

          5)Provides that written notification 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.  (Pen. Code,  680, subd. (f).)
           
           6)States notwithstanding any other limitation of time described,  
            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:








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             a)   The crime is one that requires the defendant to register  
               as a sex offender; 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.  (Pen. Code,  803,  
               subd. (g)(1).)

          7)States, notwithstanding any other limitation of time  
            described, prosecution for a specified felony sex offense  
            shall be commenced within 10 years after the commission of the  
            offense.  (Pen. Code,  801.1, subd. (b).)
           
          FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author "California Penal  
            Code 680, the Sexual Assault Victims' DNA Bill of Rights,  
            identifies DNA as a powerful tool for identifying and  
            prosecuting sexual assault offenders. DNA is found on physical  
            evidence, such as clothing or bedding, and on the victim's or  
            the suspect's body.  DNA is gathered from a victim in a  
            specialized forensic medical examination.  The forensic  
            evidence is then collected and packaged in what is commonly  
            referred to as a 'rape kit.'  Once booked into evidence by law  
            enforcement, the rape kit can be sent to a crime lab for  
            processing and DNA analysis. At the crime lab, a DNA profile  
            can be created if sufficient DNA from a perpetrator is found,  
            and the perpetrator's DNA profile can be uploaded into the  
            FBI's national DNA database, CODIS.

            "While DNA can help to identify unknown offenders, most sexual  
            assaults are committed by persons who are known to the victim.  
             Therefore, identity is not an issue in most sexual assaults.   
            But testing rape kits in those cases still has value.  Even  
            when an offender is known, uploading DNA profiles from the  
            suspect can yield matches to other cases in which the suspect  
            is unknown, resulting in 'cold hits' to connect the suspect  








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            with other unsolved crimes.

            "A victim who agrees to a forensic examination following a  
            sexual assault reasonably expects that evidence collected from  
            the exam will be analyzed. Untested rape kits mean lost  
            opportunities to develop DNA profiles, search for matches, and  
            link cold cases. Delays can also preclude criminal charges  
            from ever being filed against rapists who are identified long  
            after their crimes.  Current state law provides a ten  
            year-statute of limitations for most rape cases, but has an  
            exception - allowing criminal charges to be filed within one  
            year of the date when the suspect is conclusively identified -  
            for cases involving DNA evidence as long as the DNA is  
            analyzed within two years of the crime. (Pen. Code, Sec. 803  
            (g)(1)(A)(B).)

            "The case of Elias Acevedo, a registered sex offender and  
            serial rapist-murderer from Cleveland, Ohio, illustrates the  
            importance of testing rape kits and the tragic consequences  
            for failing to do so.  Acevedo confessed to multiple rapes and  
            murders in the 1990s after being confronted in 2013 with DNA  
            evidence linking him to a 1994 rape and murder. The DNA  
            evidence from that case sat unprocessed in a Cleveland Police  
            Department evidence locker until the arrest of Acevedo's  
            neighbor, the notorious Ariel Castro, prompted law enforcement  
            officials to analyze all rape kits in the custody of the  
            Police Department. Tragically, Acevedo raped and abused many  
            women during the 30 years it took to finally identify him.   
            Those later crimes might have been prevented and Acevedo could  
            have been brought to justice sooner. Acevedo is just one of  
            the many serial rapists who were identified when all of the  
            Cleveland rape kits were analyzed. Nearly 80 of the matches  
            tied multiple rapes to known offenders already in CODIS.

            "Likewise, numerous other jurisdictions that have analyzed  
            rape kits in an effort to clear their backlog of untested kits  
            have made cold hits in unsolved crimes. For example, 

                 New York City tested the 17,000 rape kits in its custody  
               in 2003 and implemented a new policy to test every rape  
               kit.
                  o         NYC's arrest rate for rape jumped from 40% to  
                    70% (compared to 24% nationally).
                  o         Clearing the backlog led to 2,000 DNA matches  








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                    and 200 cold case prosecutions. 

                 In Detroit, testing has begun on a backlog of more than  
               11,000 untested kits
                  o         1404 kits have been tested, resulting in 238  
                    hits in CODIS.
                  o         46 potential serial rapists, tied to rapes  
                    reported in 12 other states and the District of  
                    Columbia, have been identified.

                 Fort Worth, Texas began clearing its backlog of 960  
               untested kits in 2003.
                  o         200 DNA matches were made by CODIS
                  o         Testing led to 47 arrests, 36 felony  
                    convictions and the apprehension of five serial  
                    rapists. 
                  
                 The State of Illinois announced in December of 2013 that  
               it had cleared its backlog.
                  o         4,000 kits were analyzed. 
                  o         More than 927 profiles of suspects were  
                    matched in CODIS.
                  o         60 indictments and hundreds of additional  
                    leads were obtained.

            "The California Department of Justice has implemented a Rapid  
            DNA Service (RDS) in 46 counties which could be a model for  
            the entire state.  Nurses who perform sexual assault  
            examinations in those counties receive three probative body  
            swabs in addition to the materials in regular rape kits, and  
            send those three swabs directly to a DOJ lab for expedited  
            processing.  DOJ analyzes the swabs using large-batch  
            automated DNA analysis, informs local law enforcement agencies  
            of its findings, and uploads DNA profiles to CODIS when  
            appropriate.  In most cases, this process takes only 15 days."

           1)Background  :  In response to growing concerns over a nationwide  
            backlog of DNA evidence from sexual assault cases, the U.S  
            Department of Justice Office on Violence Against Women, in  
            collaboration with the Office of the Vice President, Office of  
            Justice Programs' National Institute of Justice, Bureau of  
            Justice Assistance, and Office for Victims of Crime, convened  
            a roundtable discussion on May 11-12, 2010, giving an  
            opportunity for key stakeholders to come together to explore  








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            approaches to eliminating the backlog of rape kits. According  
            to the summary of the proceedings, there are several barriers  
            to completing rape kit analyses in a timely manner.  Some of  
            these barriers include:

          "Lack of Clarity on the Size of the Backlog.  Crime laboratory  
            personnel are often not aware of the cases or evidence being  
            stored at law enforcement agencies.  Also, sometimes, the  
            evidence will test negative for a foreign DNA profile, so the  
            investigator will then request that the crime lab analyze the  
            bedding and clothes, which adds more work for the criminalist  
            and further increases the backlog.  This extensive analysis is  
            important for specific cases but these requests have an impact  
            on a crime laboratory's ability to process more cases.

          "Challenges to Investigating CODIS Hits.  When investigating a  
            large number of sexual assault cases where many CODIS hits are  
            being obtained, investigators must be certain that each hit is  
            a suspect and not a consensual partner of the victim, whose  
            DNA may also have been collected incidentally.  When agencies  
            have limited resources to follow-up on CODIS hits, these  
            necessary activities can add to the backlog.

          "Bias Against Certain Victims of Sexual Assault.  The  
            participants described the challenge of biases against victims  
            based on ethnicity, disability, use of alcohol or drugs, or a  
            victim's occupation as a sex worker.  Some agencies have  
            confronted this bias by testing all the sexual assault cases  
            in their possession, regardless of who the victim is.  The  
            results of these cases have been informative since agencies  
            have actually linked crimes together that would have not  
            otherwise been connected."  (U.S. Department of Justice Office  
            on Violence Against Women, Summary of Proceedings, Eliminating  
            the Rape Kit Backlog: A Roundtable to Explore a  
            Victim-Centered Approach, May 11-12, 2010, page 22.)


           2)CODIS  :  According to the Federal Bureau of Investigation's  
            (FBI) web site, "CODIS is the acronym for the 'Combined DNA  
            Index System' and is the generic term used to describe the  
            FBI's program of support for criminal justice DNA databases as  
            well as the software used to run these databases.  The  
            National DNA Index System or NDIS is considered one part of  
            CODIS, the national level, containing the DNA profiles  








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            contributed by federal, state, and local participating  
            forensic laboratories.

          "CODIS was designed to compare a target DNA record against the  
            DNA records contained in the database. Once a match is  
            identified by the CODIS software, the laboratories involved in  
            the match exchange information to verify the match and  
            establish coordination between their two agencies. The match  
            of the forensic DNA record against the DNA record in the  
            database may be used to establish probable cause to obtain an  
            evidentiary DNA sample from the suspect. The law enforcement  
            agency can use this documentation to obtain a court order  
            authorizing the collection of a known biological reference  
            sample from the offender. The casework laboratory can then  
            perform a DNA analysis on the known biological sample so that  
            this analysis can be presented as evidence in court."  
            (http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis 
            -and-ndis-fact-sheet (as of March 5, 2014).)  
           
           3)Arguments in Support  :  The  Alameda County District Attorney   
            writes, "DNA is an amazing forensic tool allowing law  
            enforcement to solve crimes and us to convict criminals,  
            especially serial sex offenders.  I have studied the research  
            from other states and communities that have begun testing all  
            kits, such as New York City.  What we are learning, and  
            perhaps some of us already know, are that perpetrators  known   
            to a victim are also sexually assaulting victims unknown to  
            them.  Spousal rapists also rape, and sometimes murder, women  
            and girls they do not know.  Serial rapists rape multiple  
            acquaintances and it is only through DNA testing that we have  
            been able to link the crimes.  On a more human level, victims  
            are entitled to justice in our courtrooms and we owe them our  
            best efforts to bring justice to the individual victim and to  
            our communities.

          "Untested rape kits mean lost opportunities to develop DNA  
            profiles, search for matches, link cold cases, prosecute  
            offenders, and bring resolution to rape victims and prevent  
            sexual assault crimes by serial sex offenders.  In fact, in  
            NYC, after clearing a backlog of nearly 17,000 kits, their  
            solve rate in sexual assault crimes jumped from 24% to 70%.   
            The only way we are able to utilize the 'floating' statute of  
            limitations beyond the 10 year statute, is if there is a  
            preliminary examination of the rape kit within 2 years of the  








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            crime.  And, even that time frame is often unmet."

           4)Arguments in Opposition  :  The  California Association of Crime  
            Lab Directors  argues, "While we understand and agree with the  
            intent to have kits processed as quickly as possible, the  
            timelines set forth in this proposal are unattainable within  
            existing resources and do not take into account the  
            complexities of processing kits.  The 30-day timeline is very  
            problematic for crime labs and is not feasible without a huge  
            influx of resources (equipment, personnel, and possibly larger  
            facilities).

          "Further, this bill does not take into account the multitude of  
            circumstances surrounding these kits.  For example, in a  
            number of cases, the identity of the involved parties is not  
            in question as both parties indicate a sexual act occurred.   
            In most of these cases, the issue is consent, not identity, so  
            DNA analysis would only confirm what is already known.  In  
            other cases, we are completing analysis on cases where we are  
            attempting to identify suspects.  Requiring a 30-day  
            processing of all kits redirects resources from the latter and  
            undermines prioritization of testing based on the facts of the  
            case and potential pending investigation."

           5)Current Legislation  : 

             a)   SB 978 (DeSaulnier) allows a hospital to notify the  
               local rape victim counseling center when the victim is  
               presented to the hospital for the medical or evidentiary  
               physical examination, upon approval of the victim.  SB 978  
               is pending hearing by the Senate Committee on Public  
               Safety.

             b)   SB 926 (Beall) authorizes prosecution of specified  
               felony sex offenses that are alleged to have been committed  
               when the victim was under 18 years of age at any time prior  
               to the victim's 40th birthday.  SB 926 is pending hearing  
               by the Senate Committee on Public Safety.  
              
           6)Prior Legislation  :  

             a)   AB 322 (Portantino), of the 2011-12 Legislative Session,  
               would have created a pilot project, commencing July 1, 2012  
               and ending on January 1, 2016, in 10 counties to have DOJ  








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               test all rape kits collected after the start date of the  
               pilot project in those counties to determine if such  
               testing increases their arrest rates in rape cases.  AB 322  
               was vetoed.

             b)   AB 558 (Portantino), of the 2009-10 Legislative Session,  
               would have required local law enforcement agencies  
               responsible for taking or collecting rape kit evidence to  
               annually report to the Department of Justice statistical  
               information pertaining to the testing and submission for  
               DNA analysis of rape kits, and would have made the reports  
               subject to inspection under the California Public Records  
               Act.  AB 558 was vetoed.

             c)   AB 1017 (Portantino), of the 2009-10 Legislative  
               Session, 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.  AB  
               1017 was vetoed.

           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Alameda County District Attorney's Office (co-sponsor)
          California Coalition Against Sexual Assault (co-sponsor)
          California Communities United Institute
          California Partnership to End Domestic Violence
          Californians for Safety and Justice
          Citizens for Law and Order
          Crime Victims Action Alliance
          Crime Victims United of California
          Glenn County District Attorney's Office
          Natasha Justice Project (co-sponsor)
          Taxpayers for Improving Public Safety
          W.O.M.A.N., Inc.

          21 private individuals

           Opposition 








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          California Association of Crime Lab Directors
          California State Sheriffs' Association
          Taxpayers for Increasing Public Safety


           Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744