BILL ANALYSIS Ó AB 1517 Page 1 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 AB 1517 Page 2 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: AB 1517 Page 3 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 AB 1517 Page 4 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 AB 1517 Page 5 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 AB 1517 Page 6 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 AB 1517 Page 7 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 AB 1517 Page 8 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 AB 1517 Page 9 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 AB 1517 Page 10 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