BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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           1517(Skinner)                                             7
          As Amended May 23, 2014
          Hearing date:  June 17, 2014
          Penal Code
          MK:sl

                                     DNA EVIDENCE  

                                       HISTORY

          Source:  Alameda County District Attorney
                   CALCASA

          Prior Legislation: AB 322 (Portantino) Vetoed 2011
                       AB 558 (Portantino) Vetoed 2010
                       AB 1017 (Portantino) Vetoed 2009

          Support: Alameda County Medical Center; Alameda County Board of  
                   Supervisors; Alliance Against Family Violence and  
                   Sexual Assault; California District Attorneys  
                   Association; California Legislative Women's Caucus;  
                   California Communities United Institute; California  
                   Partnerships to End Domestic Violence; California  
                   Police Chiefs Association Inc. (support if amended);  
                   Californians for Safety and Justice; Center Against  
                   Sexual Assault of Southwest Riverside; Community Action  
                   Partnership of Madera County; Community Service  
                   Programs; Community Violence Solutions; Contra Costa  
                   County District Attorney; Empower Yolo; Erotic Service  
                   Providers Union; Glenn County District Attorney's  
                   Office; Kene Me-Wu American Indian DV/SA Program; Kings  
                   Community Action Organization's Rape Crisis Program;  
                   Monarch Services; Monterey County Rape Crisis Center;  
                   Napa Emergency Women's Services; Natasha's Justice  
                   Project; National Association of Social Workers,  


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                   California Chapter; North County Rape Crisis & Child  
                   Protection Center; Peace Over Violence; Planned  
                   Parenthood of California; Project Sanctuary; Project  
                   Sister Family Services; Rape Crisis Intervention and  
                   Prevention; Rape Trauma Services; RISE; Santa Barbara  
                   County District Attorney's Office; Tri-Valley Haven;  
                   Verify; Wild Iris; YWCA Greater Los Angeles; Yolo  
                   County District Attorney; several individuals

          Opposition:California State Sheriffs' Association; California  
                   Association of Crime Lab Directors; Taxpayers for  
                   Improving Public Safety 

          Assembly Floor Vote:  Ayes 79 - Noes 0



                                         KEY ISSUE
           
          SHOULD TIMELINES BE SET FOR LAW ENFORCEMENT AGENCIES AND CRIME LABS  
          TO PERFORM DNA TESTING OF RAPE KIT EVIDENCE?


                                       PURPOSE
          
          The purpose of this bill is to set timelines for law enforcement  
          agencies and crime labs to perform and process deoxyribonucleic  
          acid (DNA) testing of rape kit evidence.
           
           Existing law  establishes the Sexual Assault Victims' DNA Bill of  
          Rights which provides victims of sexual assault with 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  
               Department of Justice (DOJ) Data Bank of case evidence;  


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               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).) 

           Existing law  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. (Penal Code  
          § 680 (b).) 
           
          Existing law  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. (Penal Code, § 680 (d).) 

           Existing law  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, be given written notification by the law  
          enforcement agency of that intention. (Pen. Code § 680 (e).) 


           Existing law  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. (Penal Code, § 680 (f).) 


           Existing law  states notwithstanding any other limitation of time  


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          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: The crime is one that requires the defendant to  
          register as a sex offender; 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).) 

           Existing law s  tates, 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. (Penal Code § 801.1(b).) 

           This bill  provides that a law enforcement agency assigned to  
          investigate a sexual assault offense, as specified, should do  
          one of the following for any sexual assault forensic evidence  
          received by the law enforcement agency on or after January 1,  
          2016: 

                 Submit sexual assault forensic evidence to the crime lab  
               within 10 days after it is booked into evidence; or,
           
                 Ensure that a rapid turnaround DNA program, as defined,  
               is in place to submit forensic evidence collected from the  
               victim of a sexual assault directly from the medical  
               facility where the victim is examined to the crime lab  
               within five days after the evidence is obtained from the  
               victim. 

           This bill  states that the crime lab should do one of the  
          following for any sexual assault forensic evidence received by  
          the crime lab on or after January 1, 2016: 

                 Process sexual assault forensic 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 60 days after  


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               initially receiving this evidence; or,

                 Transmit the sexual assault forensic evidence to another  
               crime lab as soon as practically possible, but no later  
               than 30 days after initially receiving the evidence, for  
               processing of the evidence for the presence of DNA.  If a  
               DNA profile is created, the transmitting crime lab should  
               upload the profile into CODIS as soon as practically  
               possible, but no longer than 30 days after being notified  
               about the presence of DNA. 

           This bill  clarifies that this bill does not require a lab to  
          test all items of forensic evidence obtained in a sexual assault  
          forensic evidence examination.  A lab is considered to be in  
          compliance with the guidelines of this bill when representative  
          samples of the evidence are processed by the lab in an effort to  
          detect foreign DNA of the perpetrator. 


           This bill  provides that for specified sex offenses, if the law  
          enforcement agency does not analyze DNA evidence within six  
          months of the time limits established under current law, the law  
          enforcement agency shall inform the victim, either orally or in  
          writing, of that fact. 

           This bill  deletes the requirement under current law that the  
          identity of the perpetrator must be in issue, for cases  
          involving a specified sex offense, in order to require a law  
          enforcement agency to inform the victim that the agency has not  
          analyzed the DNA evidence. 

           This bill  provides that a "rapid turnaround DNA program" is a  
          program for the training of sexual assault team personnel in the  
          selection of representative samples of forensic evidence from  
          the victim to be the best evidence, based on the medical  
          evaluation and patient history, the collection and preservation  
          of that evidence, and the transfer of the evidence directly from  
          the medical facility to the crime lab, which is adopted pursuant  
          to a written agreement between the law enforcement agency, the  
          crime lab, and the medical facility where the sexual assault  
          team is based. 


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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          (which stands for "Receivership/ Overcrowding Crisis  
          Aggravation"), the Committee held measures that created a new  
          felony, expanded the scope or penalty of an existing felony, or  
          otherwise increased the application of a felony in a manner  
          which could exacerbate the prison overcrowding crisis.  Under  
          these principles, ROCA was applied as a content-neutral,  
          provisional measure necessary to ensure that the Legislature did  
          not erode progress towards reducing prison overcrowding by  
          passing legislation, which would increase the prison population.  
            

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  
          inmates compared to the 2008 population . . . , and by nearly  
          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  
          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  In an order dated January 29,  
          2013, the federal court granted the state a six-month extension  


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          to achieve the 137.5 % inmate population cap by December 31,  
          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated May 15, 2014, the state  
          reported that as of May 14, 2014, 116,428 inmates were housed in  
          the State's 34 adult institutions, which amounts to 140.8% of  
          design bed capacity, and 8,650 inmates were housed in  
          out-of-state facilities.   

          The ongoing prison overcrowding litigation indicates that prison  


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          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 Whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 Whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and,
                 Whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

           
                                          
          

                                      COMMENTS

          1.  Need for This Bill  

          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  


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               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 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).)

               In 2003, New York City tested 17,000 rape kits that  
               were in storage and implemented a policy to test every  
               rape kit in law enforcement custody.  The city's arrest  
               rate for rape jumped from 40% to 70% (compared to 24%  
               nationally). Clearing the backlog in the city led to  
               more than 2,000 DNA matches and over 200 cold case  
               prosecutions. 

               Likewise, several cities and counties in California,  


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               including San Francisco and Los Angeles, have adopted  
               policies to process all forensic evidence kits that are  
               collected from rape victims.  As a result, numerous  
               cold cases have been solved.  In fact, the testing of  
               backlogged rape kits in Los Angeles resulted in the  
               apprehension of a serial killer who had been at large.

               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.

          2.    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 and  
          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.   


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          (Penal Code § 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.  (Penal Code  
          § 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) (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.  Since 2009 backlogs of rape kits throughout the  
          state have been greatly reduced.  For example, the City of Los  
          Angeles announced in April of 2011 that it had cleared the  
          backlog of 6,132 cases that were collected through 2008. (Human  
          Rights Watch, "The City of Los Angeles Eliminates Historical  
          Rape Kit Backlog" April 29, 2011,  
          http://www.hrw.org/news/2011/04/29/city-los-angeles-eliminates-hi 
          storical-rape-kit-backlog)  The California Attorney General has  
          also been recognized by the US Department of Justice for its  
          Rapid DNA Service Team which has developed a program which helps  
          eight California counties reduce the time it takes to test DNA  
          from rape kits  
          (http://oag.ca.gov/news/press-releases/california-attorney-genera 
          l%E2%80%99s-office-receive-national-recognition-innovation)

          4.  New Timelines for Testing DNA Related to a Sexual Assault  

          This bill provides that in order to assure that forensic  
          evidence from sexual assaults are analyzed within the two year  
          timeframe the following should occur:


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                 For any sexual assault forensic evidence received by the  
               law enforcement agency on or after January 1 2016: 

                  o         Submit sexual assault forensic evidence to a  
                    crime lab within 10 days after it is booked in to  
                    evidence; and,
                      
                  o         Ensure that a rapid turnaround DNA program is  
                    in place to submit forensic evidence collected from  
                    the victim of a sexual assault directly from the  
                    medical facility where the victim is examined to the  
                    crime lab within five days after the evidence is  
                    obtained from the victim.

                 The crime lab should do one of the following for any  
               sexual assault forensic evidence received by the crime lab  
               on or after January 1, 2016.

                  o         Process sexual assault forensic evidence,  
                    create DNA provides when able, and upload qualifying  
                    DNA profiles into CODIS as soon as practically  
                    possible, but no later than 60 days after initially  
                    receiving the evidence; or,

                  o         Transmit the sexual assault forensic evidence  
                    to another crime lab as soon as practically possible,  
                    but not later than 30 days after initially receiving  
                    the evidence, for processing of the evidence for the  
                    presence of DNA. If a DNA profile is created, the  
                    transmitting crime lab should upload the profile into  
                    CODIS as soon as practically possible, but no longer  
                    than 30 days after being notified about the presence  
                    of DNA.

          The new time frames in this bill raise a number of questions:

                 Are the timeframes in this bill realistic?
                  
                 In some sexual assaults the perpetrator is known.  Even  
               though ideally all DNA from sexual assaults should be  


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               uploaded to CODIS, should those with a known perpetrator be  
               given the same priority as those with an unknown  
               perpetrator?   
                 The rationale for the known perpetrator being uploaded  
               to CODIS has always been to determine if he or she has  
               perpetrated other offenses, but since DNA now is taken of  
               all felons, and that is uploaded to CODIS, is the urgency  
               for the evidence of the rape kit the same if the known  
               perpetrator is convicted?  And, is this the most  
               appropriate use of limited lab time and money?

                 If Los Angeles has eliminated its backlog, and the  
               Attorney General has helped eight smaller counties with  
               their backlogs are these time frames necessary? 
           
                 If other counties are having trouble addressing their  
               backlog is that something that is more appropriately dealt  
               with law enforcement and the district attorney working  
               together with their local crime lab or private labs in that  
               county?
            
                 The new time frames apply to sexual assaults occurring  
               after January 1, 2016.  What does that mean for forensic  
               evidence that occur at the end of 2015, are they then a  
               lower priority because the timelines don't apply even if it  
               means a violent assault by an unknown assailant would  
               become a lower priority for testing than an assault by a  
               known assailant?















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          5.   Support  

          Alameda County District Attorney Nancy O'Malley contends this  
          bill will maintain pressure on law enforcement and laboratories  
          to expedite rape kit processing and reduce or eliminate  
          backlogs, preserve the statute of limitations, and increase the  
          potential for cold hits with CODIS. 

          District Attorney O'Malley states in part:

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

          6.  Opposition  

          The California State Sheriffs' Association opposes this bill  
          stating:

               We share the author's intent that sexual assaults are  
               investigated and perpetrators not go unpunished.  That  
               said, this bill, despite recent amendments, still  
               creates an expectation that every forensic kit will be  
               collected, submitted, and tested within specified  
               timeframes, regardless of any related factors,  
               including in situations where it has been determined a  
               crime has not been committed or where the identity of  
               the perpetrator is known.  Circumstances exist under  
               which the submission of every kit for testing may not  
               be justified given case details and limited law  
               enforcement resources.

               We appreciate the amendments that attempt to address  
               the bill's unfunded mandates, but we still believe it  
               is more appropriate for local priorities and resources,  


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               as well as case-specific factors, to govern this  
               process.  A jurisdiction may have pending cases that  
               demand forensic evidence testing resources, and  
               examining evidence from those cases may be more  
               time-sensitive than testing a particular kit under  
               specific time frames, especially in cases in which the  
               identity of the perpetrator is known.

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