BILL ANALYSIS Ó
AB 1744
Page 1
Date of Hearing: March 15, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1744 (Cooper) - As Introduced February 1, 2016
SUMMARY: Requires the Department of Justice's Bureau of
Forensic Services, the California Association of Crime
Laboratory Directors, and the California Association of
Criminalists to work collaboratively with public crime
laboratories, in conjunction with the California Clinical
Forensic Medical Training Center, to develop a standardized
sexual assault forensic medical evidence kit to be used by all
California jurisdictions. Specifically, this bill:
1)Directs the Department of Justice's Bureau of Forensic
Services, the California Association of Crime Laboratory
Directors, and the California Association of Criminalists to
provide leadership and work collaboratively with public crime
laboratories to develop a standardized sexual assault forensic
medical evidence kit to be used by all California
jurisdictions.
2)Allows the packaging and appearance of the rape kits to vary,
but requires the elements of the kit shall be comparable with
a minimum number of similar components.
3)Requires the development of the rape kit to be completed in
conjunction with the California Clinical Forensic Medical
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Training Center, as specified.
EXISTING LAW:
1)Codifies the "Sexual Assault Victims' DNA Bill of Rights."
(Pen. Code, § 680.)
2)Finds and declares the following as part of the Sexual Assault
Victims' DNA Bill of Rights:
a) Deoxyribonucleic acid (DNA) and forensic identification
analysis is a powerful law enforcement tool for identifying
and prosecuting sexual assault offenders. (Pen. Code, §
680, subd. (b)(1).)
b) Existing law requires an adult arrested for or charged
with a felony and a juvenile adjudicated for a felony to
submit DNA samples as a result of that arrest, charge, or
adjudication. (Pen. Code, § 680, subd. (b)(2).)
c) Victims of sexual assaults have a strong interest in the
investigation and prosecution of their cases. (Pen. Code, §
680, subd. (b)(3).)
d) 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).)
e) The growth of the Department of Justice's Cal-DNA
databank and the national databank through the Combined DNA
Index System (CODIS) makes it possible for many sexual
assault perpetrators to be identified after their first
offense, provided that rape kit evidence is analyzed in a
timely manner. (Pen. Code, § 680, subd. (b)(5).)
f) Timely DNA analysis of rape kit evidence is a core
public safety issue affecting men, women, and children in
the State of California. (Pen. Code, § 680, subd. (b)(6).)
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g) In order to ensure that sexual assault forensic evidence
is analyzed within the two-year timeframe, as specified,
and to ensure the longest possible statute of limitations
for sex offenses, including sex offenses designated
pursuant to those subparagraphs, the following should
occur:
i) A law enforcement agency whose jurisdiction is
specified sex offenses, should do one of the following
for any sexual assault forensic evidence received by the
law enforcement agency on or after January 1, 2016:
(1) Submit sexual assault forensic evidence to the
crime lab within 20 days after it is booked into
evidence. (Pen. Code, § 680, subd. (b)(7)(A)(i).)
(2) 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)(ii).)
ii) 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:
(1) Process sexual assault forensic evidence,
create DNA profiles when able, and upload qualifying
DNA profiles into CODIS as soon as practically
possible, but no later than 120 days after initially
receiving the evidence. (Pen. Code, § 680, subd.
(b)(7)(B)(i).)
(2) 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
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than 30 days after being notified about the presence
of DNA. (Pen. Code, § 680, subd. (b)(7)(B)(ii).)
iii) This subdivision 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 section 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).)
iv) This section does not require a DNA profile to be
uploaded into CODIS if the DNA profile does not meet
federal guidelines regarding the uploading of DNA
profiles into CODIS. (Pen. Code, § 680, subd. (b)(7)(D).)
v) For purposes of this section, 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. (Pen.
Code, § 680, subd. (b)(7)(E).)
h) If the law enforcement agency does not analyze DNA
evidence within six months prior to the time limits
established, the victim of a specified sexual assault
offense shall be informed, either orally or in writing, of
that fact by the law enforcement agency. (Pen. Code, § 680,
subd. (d).)
i) 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, the victim of a
specified violation shall be given written notification by
the law enforcement agency of that intention. (Pen. Code, §
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680, subd. (e).)
3)States that to ensure the delivery of standardized curriculum,
essential for consistent examination procedures throughout the
state, one hospital-based training center shall be established
through a competitive bidding process, to train medical
personnel on how to perform medical evidentiary examinations
for victims of child abuse or neglect, sexual assault,
domestic violence, elder abuse, and abuse or assault
perpetrated against persons with disabilities. (Pen. Code, §
13823.99, subd. (b).)
4)Requires the hospital based training center to provide
training for investigative and court personnel involved in
dependency and criminal proceedings, on how to interpret the
findings of medical evidentiary examinations. (Pen. Code, §
13823.99, subd. (b).)
5)The training provided by the training center shall be made
available to medical personnel, law enforcement, and the
courts throughout the state and meet specified criteria. (Pen.
Code, § 13823.99, subd. (b) and (c).)
6)Requires the training center to develop and implement a
standardized training program for medical personnel that has
been reviewed and approved by a multidisciplinary peer review
committee. (Pen. Code, § 13823.99, subd. (d)(1).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Sexual assault
victims and California communities expect effective and
competent intervention at from all disciplines in response to
sexual assault. Inter-agency cooperation and collaboration
within disciplines is essential to deliver optimum care to
victims of sexual assault.
"There are approximately 10-12 different sexual assault
evidence "rape kits" used in California. Some forensic
medical examination teams are required to be familiar with
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multiple kits which creates the potential for error.
"Currently, crime laboratories create their own kits based on
the statutory exam elements and the required standard state
form. As a result, there are variations among crime
laboratories. Some exam teams serve multiple crime
laboratories depending upon which law enforcement jurisdiction
the crime occurred and must adapt to variations in crime
laboratory evidence kits.
"AB 1744 would require that the California Department of
Justice's Bureau of Forensic Services, the California
Association of Crime Laboratory Directors, the California
Association of Criminalists and the California Clinical
Forensic Medical Training Center to collaborate and develop a
standardized sexual assault evidence kit."
2)Bureau of Forensic Services: The Bureau of Forensic Services
(BFS) is the scientific arm of the Attorney General's Office
whose mission is to serve the people of California on behalf
of the Attorney General's Office. Forensic scientists
collect, analyze, and compare physical evidence from suspected
crimes. They provide analysis of evidence in toxicology,
including alcohol, controlled substances and clandestine drug
labs, biology and DNA, firearms, impression evidence such as
shoeprints, tire marks or fingerprints, trace evidence
including hair, fibers, and paint, and crime-scene analysis of
blood spatter patterns and evidence collection, and they
testify in state and federal court cases about their analyses
in criminal trials. Descriptions of the forensic services BFS
provides as well as the BFS regional service areas can be
found on the BFS Laboratory Services page. BFS also offers
specialized forensic science training to personnel who are
practitioners in the field of forensic science through the
California Criminalistics Institute (CCI).
( https://oag.ca.gov/bfs)
3)California Clinical Forensic Medical Training Center: The
California Clinical Forensic Medical Training Center was
established by state law in 1995 to increase access by victims
of interpersonal violence to trained nursing and medical
professionals. The California legislature determined that
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access to healthcare professionals knowledgeable about medical
evidentiary examinations and psychological trauma caused by
violence and abuse was uneven in both rural and urban areas
throughout California. As a result, laws were enacted to meet
this need and create this public policy direction. The Center
is primarily funded by the California Governor's Office of
Emergency Services (Cal OES) with Federal and State funds, and
other sources of funding.
( www.ccfmtc.org/about-us-2/history-and-mission/)
4)Standardized Sexual Assault Evidence Collection Kits: The
U.S. Department of Justice developed a national protocol for
sexual assault examinations in 2004. The protocol has
continued to be updated. This protocol was developed with the
input of national, local, and tribal experts throughout the
country, including law enforcement representatives,
prosecutors, advocates, medical personnel, forensic
scientists, and others.
The protocol recommended that sexual assault examine kits meet
minimum standards. It also suggested standardization of
sexual assault evidence collection kits within a jurisdiction
and across a state, although it recognized potential issues
with standardization. (A National Protocol for Sexual Assault
Medical Forensic Examinations, U.S. DOJ, Office on Violence
Against Women, April 2013, p. 71.)
To the extent that evidence kits are standardized, the protocol
makes the following recommendations (Id. at p. 72.):
a) That a designated agency in the jurisdiction be
responsible for oversight of kit development and
distribution.
b) Ensure that facilities that conduct sexual assault
medical forensic exams are involved in kit development and
supplied with kits.
c) Work with relevant agencies (e.g., crime labs, law
enforcement agencies, exam facilities and examiner
programs, advocacy programs, and prosecutors' offices) to
keep abreast of related changes in technology, scientific
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advances, and cutting-edge practice.
d) Review periodically (e.g., every 2 to 3 years) kit
efficiency and usefulness.
e) Make adjustments to the kit as necessary.
f) Establish mechanisms to ensure that kits at exam
facilities are kept up to date (e.g., if a new evidence
collection procedure is added, facilities need to know what
additional supplies should be readily available).
The protocol recognized the potential challenges of a
standardized sexual assault evidence collection kit. Some
challenges could include building consensus across communities
regarding best practices, obtaining buy-in from involved
agencies, and costs to the state and local communities.
5)Argument in Support: According to California Coalition
Against Sexual Assault, "Sexual assault forensic nurse
examiners are required by state law to follow the California
Protocol for Examination of Sexual Assault victims and
complete the detailed Cal OES 2-293 Sexual Assault Forensic
Medical Report form. The protocol and standard state form are
required by Penal Code Section 13823.5-13823.11. However,
California does not have one standardized sexual assault
evidence kit, resulting in variation in DNA evidence
collection, preservation, packaging, and labeling in multiple
jurisdictions.
"It is time for the state's crime labs to collaborate and agree
upon one evidence kit to minimize confusion and the potential
for error."
6)Related Legislation: AB 909 (Quirk), requires law
enforcement agencies to make annual reports to the Department
of Justice (DOJ) pertaining to the processing of rape kits, as
specified, and would require the DOJ to submit annual reports
to the appropriate policy committees of the Legislature
summarizing the information the department receives pursuant
to these provisions. AB 909 is being held in Senate
Appropriations Committee.
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7)Prior Legislation:
a) AB 1475 (Cooper), Chapter 210, Statutes of 2015,
authorizes each county to establish an interagency sexual
assault response team (SART) program for the purpose of
providing a forum for interagency cooperation and
coordination to effectively address the problem of sexual
assault.
b) AB 1517 (Skinner), Chapter 874, Statutes of 2014,
"Sexual Assault Victims' DNA Bill of Rights" encourages law
enforcement to submit sexual assault DNA evidence to the
crime lab with 20 days of when the evidence is booked and
encourages laboratories to test that DNA evidence with 120
days of receipt.
c) AB 322 (Portantino), of the 2011-2012 Legislative
Session, would have established a pilot program in 10
counties where rape kits in those counties would have been
process by the Department of Justice in department
laboratories. AB 322 was vetoed by the Governor.
d) SB 271 (Wyland), of the 2011-2012 Legislative Session,
would have required law enforcement agencies that obtained
rape kits in connection with the investigation of a
criminal case to submit those rape kits to a specified
laboratory within 10 business days of receipt and would
have required the laboratory that received a rape kit to
complete analysis of that rape kit within 6 months of
receipt if sufficient staffing and resources are available.
SB 271 was held in Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice
California Coalition Against Sexual Assault
California District Attorneys Association
California Peace Officers' Association
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Opposition
None
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744