BILL ANALYSIS Ó
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