BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 5 1 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, (More) AB 1517 (Skinner) Page 2 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; (More) AB 1517 (Skinner) Page 3 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 (More) AB 1517 (Skinner) Page 4 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 (More) AB 1517 (Skinner) Page 5 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. (More) AB 1517 (Skinner) Page 6 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 (More) AB 1517 (Skinner) Page 7 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 (More) AB 1517 (Skinner) Page 8 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 (More) AB 1517 (Skinner) Page 9 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, (More) AB 1517 (Skinner) Page 10 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. (More) AB 1517 (Skinner) Page 11 (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: (More) AB 1517 (Skinner) Page 12 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 (More) AB 1517 (Skinner) Page 13 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? (More) 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, (More) AB 1517 (Skinner) Page 15 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. ***************