BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 909 Hearing Date: June 23, 2015
-----------------------------------------------------------------
|Author: |Quirk |
|-----------+-----------------------------------------------------|
|Version: |February 26, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JRD |
| | |
-----------------------------------------------------------------
Subject: Sexual Assault Crimes
HISTORY
Source: Unknown
Prior Legislation:AB 1517 (Skinner) - Chapter 874, Statutes of
2014
SB 978 (DeSaulnier) - Chapter 136, Statutes of
2014
AB 322 (Portantino) - vetoed by Governor, 2011-12
AB 558 (Portantino) - vetoed by Governor, 2009-10
AB 1017 (Portantino) - vetoed by Governor,
2009-10
Support: National Association of Social Workers
Opposition:California State Sheriffs' Association
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this bill is to require: 1) law enforcement
AB 909 (Quirk ) Page
2 of ?
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; and 2)
DOJ to submit a report to the appropriate policy committees of
the Legislature summarizing the information DOJ receives, as
specified.
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 DOJ Data
Bank of case evidence; 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 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. (Penal Code § 680(b)(4).)
Existing law 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:
Submit sexual assault forensic evidence to the crime lab
within 20 days after it is booked into evidence; or
Ensure that a rapid turnaround DNA program is in place
AB 909 (Quirk ) Page
3 of ?
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.
(Penal Code § 680(b)(7)(A).)
Existing law 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:
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
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.
(Penal Code § 680(b)(7)(B).)
Existing law 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.
(Penal Code § 680(b)(7)(C).)
Existing law 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 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
AB 909 (Quirk ) Page
4 of ?
to a written agreement between the law enforcement agency, the
crime lab, and the medical facility where the sexual assault
team is based. (Penal Code § 680(b)(7)(E).)
Existing law 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. (Penal Code § 680(d).)
Existing law 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:
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).)
This bill requires a law enforcement agency responsible for
taking or processing rape kit evidence to annually report, by
AB 909 (Quirk ) Page
5 of ?
July 1 of each year, the following information to the Department
of Justice:
The number of rape kits the law enforcement agency
collects;
The number of rape kits the law enforcement agency
collects that are tested; and
The number of rape kits the law enforcement agency
collects that are not tested and the reason the rape kit
was not tested.
This bill requires, beginning January 1, 2017, and each January
1 after that date, DOJ to submit a report to the appropriate
policy committees of the Legislature summarizing the information
DOJ receives pursuant to the provisions in this bill.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
AB 909 (Quirk ) Page
6 of ?
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity." (
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Legislation
According to the Author:
Over the last several years, hundreds of thousands of
AB 909 (Quirk ) Page
7 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.
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. Effect of Legislation
AB 909 (Quirk ) Page
8 of ?
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 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 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:
Law enforcement 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
AB 909 (Quirk ) Page
9 of ?
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 21.)
Even though the individual reasons for not testing the kits were
found to be reasonable, the report still stressed the need for
more information about why agencies decide to send some kits but
not others because tracking this information would allow for
internal review and would increase accountability to the public.
(Id. at 23-24.)
Specifically, the report recommended the Legislature:
Direct law enforcement agencies to report to Justice
annually how many sexual assault evidence kits they collect
and the 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 4.)
This legislation implements this recommendation by requiring a
law enforcement agency responsible for taking or processing rape
kit evidence to annually report, by July 1 of each year, to the
Department of Justice: (1) the number of rape kits the law
enforcement agency collects; (2) the number of rape kits the law
enforcement agency collects that are tested; and, (3) the number
of rape kits the law enforcement agency collects that are not
tested and the reason the rape kit was not tested. This
legislation, additionally, requires DOJ to prepare an annual
report for the legislature.
3. Previous Legislation
AB 558 (Portantino) and AB 1017 (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
and AB 1017 were both vetoed. The AB 555 veto message stated:
AB 909 (Quirk ) Page
10 of ?
This bill is similar to AB 1017 (2009), which I also
vetoed. Unfortunately, while this measure is
well-intended, it continues to ignore the precarious
fiscal conditions of California's crime laboratories.
Indeed, as noted by the California Crime Laboratory
Review Task Force in its 2009 report, DNA,
fingerprints, and firearms testing have been
identified as areas where requests often exceed
staffing capabilities. The Task Force also noted that
in order to eliminate the backlog for DNA testing, an
additional 282 analysts would have to be funded.
Unfortunately, AB 558 will not provide any additional
funding or staffing for crime laboratories and will
instead divert resources away from testing to sending
reports to the Department of Justice. In this time of
fiscal crisis, I cannot condone this shift in
priorities.
4. Argument in Support
The National Association of Social Workers, California
Chapter, supports AB 909:
[W]hich 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
AB 909 (Quirk ) Page
11 of ?
unanalyzed kits that are sitting in evidence rooms
across the state allow perpetrators to walk free and
deprive victims of justice.
5. 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.
-- END -