BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1744       Hearing Date:    June 21, 2016    
          
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          |Author:    |Cooper                                               |
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          |Version:   |May 5, 2016                                          |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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               Subject:  Sexual Assault Forensic Medical Evidence Kit



          HISTORY

          Source:   California Clinical Forensic Medical Training Center

          Prior Legislation:AB 1475 (Cooper) - Chapter 210, Stats. 2015
                         AB 1517 (Skinner) - Chapter 874, Stats. 2014
                         SB 271 (Wyland) not heard 2012
                         AB 322 (Portantino) Vetoed 2011
                         

          Support:  Alameda County District Attorney; Attorney General's  
                    Office; CALCASA; California District Attorneys  
                    Association; California Association of Crime  
                    Laboratory Directors; California Peace Officers'  
                    Association; California Sexual Assault Investigators  
                    Association;  Crime Victims United of California

          Opposition:None known

          Assembly Floor Vote:                 76 - 0


          PURPOSE
          








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          The purpose of this bill is to require 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 for use by all  
          California jurisdictions. 
          
          Existing law codifies the "Sexual Assault Victims' DNA Bill of  
          Rights." (Penal Code, § 680.)

          Existing law 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. (Penal Code, §  
          13823.99 (b).) 

          Existing law 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. (Penal Code, §  
          13823.99 (b).) 

          Existing law provides 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. (Penal Code § 13823.99 (b) and (c).) 

          Existing law 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. (Penal Code, § 13823.99 (d)(1).)

          This bill provides that the Department of Justice's Bureau of  
          Forensic Services, the California Association of Crime  
          Laboratory Directors, and the California Association of  
          Criminalists shall provide leadership and work collaboratively  
          with public crime laboratories to develop a standardized sexual  
          assault forensic medical evidence for use by all California  








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          jurisdictions.

          This bill provides that the packaging and appearance of the kit  
          may vary, but the kit shall contain a minimum number of basic  
          components and also clearly permit swabs or representative  
          evidence samples to be earmarked for a rapid turnaround DNA  
          program when applicable.

          This bill provides that the collaboration to establish the basic  
          components for a standardized sexual assault forensic medical  
          evidence kit would be completed by January 30, 2018 and shall be  
          conducted in conjunction with the California Clinical Forensic  
          Medical Training Center that is responsible for the development  
          of sexual assault standardized forensic medical report forms and  
          for providing training programs.

          This bill provides that on or before May 30, 2019, the  
          California Clinical Forensic Medical Training Center, in  
          coordination with the Department of Justice's Bureau of Forensic  
          Services, the California Association of Crime Laboratory  
          Directors, and the California Association of Criminalists shall  
          issue guidelines pertaining to the use of the standardized  
          sexual assault kit components throughout the state.

          This bill provides that every local and state agency shall  
          remain responsible for its own costs in purchasing a  
          standardized sexual assault forensic medical evidence kit.

          This bill provides that failure to use the standardized sexual  
          assault forensic medical evidence kit created under this bill  
          shall not constitute grounds to exclude evidence.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several 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.   








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          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. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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 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  








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               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 Bill 
          
          According to the author:

               There are variations in sexual assault forensic medical  
               evidence kits in California.  The CA Department of  
               Justice Bureau of Forensic Services (BFS) serves 48  
               counties with one kit.  The ten large California  
               counties have separate kits.  This causes problems for  
               sexual assault nurse examiners who perform sexual  
               assault forensic medical exams for several  
               jurisdictions.  Their job is to collect evidence  
               (including DNA evidence) and properly preserve, package  
               and label it to ensure that chain of custody has been  
               properly followed for all exams.  


               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 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  








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               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) 
          
          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 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  








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          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 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). 








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          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. 

          This bill has the Department of Justices Bureau of Forensic  
          Services, the California Association of Criminalists and the  
          California Association of Crime Laboratories work together to  
          create a standardized sexual assault forensic medical kit for  
          use in California.



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