BILL ANALYSIS Ó
AB 909
Page 1
Date of Hearing: April 14, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
909 (Quirk) - As Introduced February 26, 2015
SUMMARY: Requires law enforcement agencies responsible for
taking or processing rape kit evidence to annually report to the
Department of Justice (DOJ) specified information pertaining to
the processing of rape kits. Specifically, this bill:
1)Provides that a law enforcement agency responsible for taking
or processing rape kit evidence shall annually report, by July
1 of each year, all of the following information to the
Department of Justice:
a) The number of rape kits the law enforcement agency
collects;
b) The number of rape kits the law enforcement agency
collects that are tested; and
c) The number of rape kits the law enforcement agency
collects that are not tested and the reason the rape kit
was not tested.
2)Requires, beginning January 1, 2017, and each January 1 after
that date, DOJ to submit a report to the appropriate policy
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committees of the Legislature summarizing the information DOJ
receives pursuant to the provisions in this bill.
3)States that the report shall be submitted in compliance with
requirements in existing statutes relating to submission of
reports by state or local agencies.
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 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 Legislative finding that law enforcement agencies
have an obligation to victims of sexual assaults in the proper
handling, retention, and timely DNA testing of rape kit
evidence or other crime scene evidence and to be responsive to
victims concerning the developments of forensic testing and
the investigation of their cases. (Pen. Code, § 680, subd.
(b)(4).)
3)Specifies that law enforcement should do one of the following
for any sexual assault forensic evidence received by the law
enforcement agency on or after January 1, 2015:
a) Submit sexual assault forensic evidence to the crime lab
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within 20 days after it is booked into evidence; or
b) 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. (Pen. Code, §
680, subd. (b)(7)(A).)
4)Specifies 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:
a) 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 not later than 120 days after
initially receiving the evidence; or
b) 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 later than 30 days after being notified
about the presence of DNA. (Pen. Code, § 680, subd.
(b)(7)(B).)
5)Provides that the above provisions establishing timelines for
testing DNA do 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 set forth in those provisions when representative
samples of the evidence are processed by the lab in an effort
to detect the foreign DNA of the perpetrator. (Pen. Code, §
680, subd. (b)(7)(C).)
6)Defines "rapid turnaround DNA program" as 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
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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. (Pen. Code, § 680, subd. (b)(7)(E).)
7)States if the law enforcement agency elects not to analyze DNA
evidence within 6 months prior to the established time limits,
a victim of a sexual assault offense as specified, shall be
informed, either orally or in writing, of that fact by the law
enforcement agency. (Pen. Code, § 680, subd. (d).)
8)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:
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).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Over the last
several years, hundreds of thousands of unanalyzed rape kits
have been discovered nationwide. In response, several states
have passed legislation that sets timelines for analyzing the
kits in a timely manner. Others passed measures to track and
report rape kits.
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"An October 2014 California State Auditor report highlighted
the pressing need for California to more adequately track and
report rape kits and recommended that law enforcement agencies
report this information annually.
"Tracking and reporting rape kits is essential to fully
understanding why investigators choose to send some kits to be
analyzed and not others. It is essential to understand how
large the backlog really is in order to tackle the problem
effectively.
"Law enforcement agencies are not required to track or report
the number of rape kits they collect or how many go
unanalyzed. Further, investigators are not required to
document their reasons for not submitting a rape kit to be
tested. Due to the lack of tracking and reporting
requirements, the total number of unanalyzed kits statewide is
unknown. The unknown number of unanalyzed kits that are
sitting in evidence rooms across the state allow perpetrators
to walk free and deprive victims of justice.
"AB 909 will require local law enforcement agencies to track
and report on the number of rape kits they collect, test and
how many go untested. For untested rape kits, law enforcement
agencies will be required to document the reason for not
submitting the kit to be tested. Law enforcement agencies
will also be required to submit this information to the
Department of Justice annually."
2)Tracking of Rape Kit Tests: A recent report by the California
State Auditor found that law enforcement agencies rarely
document reasons for not analyzing sexual assault evidence
kits. (California State Auditor, Sexual Assault Evidence Kits
(Oct. 2014).) Specifically, the report found that "[i]n 45
cases . . . reviewed in which investigators at the three
agencies we visited did not request a kit analysis, the
investigators rarely documented their decisions. As a result,
we often could not determine with certainty why investigators
decided that kit analysis was not needed. Among the 15 cases
we reviewed at each of the three locations, we found no
examples of this documentation at either the Sacramento
Sheriff or the San Diego Police Department, and we found only
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six documented explanations at the Oakland Police Department.
Investigative supervisors at both the Sacramento Sheriff and
the San Diego Police Department indicated that their
departments do not require investigators to document a
decision not to analyze a sexual assault evidence kit. The
lieutenant at the Oakland Police Department's Special Victims
Section stated that, during the period covered by our review,
the section expected such documentation from its investigators
in certain circumstances, but that it was not a formal
requirement at that time." (Id. at p. 23.)
Upon a more in-depth review of the individual cases, the report
found that analysis of the kits would not have been likely to
further the investigation of those cases. The "decisions not
to request sexual assault evidence kit analysis in the
individual cases we reviewed appeared reasonable because kit
analysis would be unlikely to further the investigation of
those cases. We reviewed specific cases at each agency in
which investigators did not request analysis. Our review
included 15 cases from each of the three agencies we visited
with offenses that occurred from 2011 through 2013, for a
total of 45 cases. In those cases, we did not identify any
negative effects on the investigations as a result of
decisions not to request analysis. We based our conclusions on
the circumstances present in the individual cases we reviewed,
as documented in the files for the 45 cases and as discussed
with the investigative supervisors." (Id. at p. 21.)
Even though the individual reasons for not testing the kits
was found to be reasonable, the report still stressed the need
for more information about why agencies decide to send some
kits but not others. It would benefit not only investigators,
but the public as well, because requiring investigators to
document their reasons for not requesting kit analysis would
assist agencies in responding to the public concern about
unanalyzed kits. Doing so would allow for internal review and
would increase accountability to the public. (Id. at pp.
23-24.)
Specifically, the report recommended the Legislature to
"direct law enforcement agencies to report to Justice annually
how many sexual assault evidence kits they collect and the
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number of kits they analyze each year. The Legislature should
also direct law enforcement agencies to report annually to
Justice their reasons for not analyzing sexual assault
evidence kits. The Legislature should require an annual report
from Justice that details this information." (Id. at p. 4.)
3)Argument in Support: The National Association of Social
Workers, California Chapter supports AB 909 "which will
require local law enforcement agencies to track and report on
the number of rape kits they collect, how many they test and
how many go untested. For untested rape kits, law enforcement
agencies will be required to document the reason for not
submitting the kit to be tested. Law enforcement agencies
will also be required to submit this information to the DOJ by
July 1 of each year. This measure will also require the DOJ
to submit an annual report to the appropriate legislative
committees beginning January 1, 2017.
"Currently law enforcement agencies are not required to track or
report information about the number of rape kits they collect
or how many go unanalyzed. Further, investigators are not
required to document their reasons for not submitting a rape
kit to be tested. Due to the lack of tracking and reporting
requirements, the total number of unanalyzed kits statewide is
unknown. The unknown number of unanalyzed kits that are
sitting in evidence rooms across the state allow perpetrators
to walk free and deprive victims of justice."
4)Argument in Opposition: According to the California State
Sheriffs' Association, "By requiring law enforcement agencies
to provide statistics to DOJ, AB 909 will create another
unfunded mandate and would place significant cost burdens on
these agencies in terms of resources and personnel. Doing so
could inadvertently hamper our ability to process these kits.
"Local law enforcement agencies are still dealing with the
effects of significant budget cuts over the last several years
while trying to maintain critical services. Adding an
additional reporting requirement would divert limited
resources away from providing current services."
5)Prior Legislation:
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a) AB 1517 (Skinner), Chapter 874, Statutes of 2014,
established timelines for law enforcement agencies and
crime labs to perform and process DNA testing of rape kit
evidence.
b) SB 978 (DeSaulnier), Chapter 136, Statutes of 2014,
allows the 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.
c) 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
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.
d) 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.
e) 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
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American Civil Liberties Union of California
California Women Lawyers
Crime Victims United
National Association of Social Workers - California Chapter
Opposition
California State Sheriffs' Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744