BILL ANALYSIS Ó
AB 1848
Page 1
Date of Hearing: April 5, 2016
Consultant: Matt Dean
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1848 (Chiu) - As Amended March 15, 2016
SUMMARY: Requires local law enforcement agencies to
periodically update the Sexual Assault Forensic Evidence
Tracking database (SAFE-T) on the disposition of all sexual
assault evidence kits (rape kits) in their custody.
Specifically, this bill:
1)Finds and declares that there is a significant public interest
in knowing whether rape kits have been tested and if the kits
have not been tested, the reasons why they were not tested.
2)Requires participation by law enforcement agencies in the
SAFE-T database.
3)Requires law enforcement agencies, on a schedule set by the
Department of Justice (DOJ) to submit via SAFE-T the:
a) Number of rape kits collected during the set period,
b) Number of kits where biological evidence was submitted
to a DNA laboratory for analysis,
c) Number of kits from which a DNA profile hit was
generated, and
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d) Reasons why a particular rape kit was not submitted to a
DNA laboratory for testing.
4)Requires DNA laboratories to enter into SAFE-T, every 120
days, and the reasons why any particular rape kit has not been
tested.
5)States that SAFE-T shall not contain any identifying
information about a victim or a suspect, any DNA profiles, or
any information that would impair a pending criminal
investigation.
6)Requires DOJ to report to the Legislature quarterly a summary
of the information entered into SAFE-T.
7)States that, beside the required report to the Legislature,
all contents of SAFE-T shall be confidential, and no law
enforcement agency or laboratory may be compelled in a civil
or criminal proceeding to disclose the contents of SAFE-T
unless the contents contain exculpatory evidence for a
criminal defendant.
8)Finds and declares that it is necessary to keep SAFE-T's
contents confidential in order to protect victims of crime.
EXISTING LAW:
1)Requires an adult arrested for or charged with a felony and a
juvenile adjudicated for a felony to submit deoxyribonucleic
acid (DNA) samples. (Pen. Code, § 296.)
2)Establishes the DNA and Forensic Identification Database and
Data Bank Program to assist federal, state, and local criminal
justice and law enforcement agencies within and outside
California in the expeditious and accurate detection and
prosecution of individuals responsible for sex offenses and
other crimes, the exclusion of suspects who are being
investigated for these crimes, and the identification of
missing and unidentified persons, particularly abducted
children. (Pen. Code, §§ 295, 295.1.)
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3)Encourages DNA analysis of rape kits within the statute of
limitations, which states that a criminal complaint must be
filed within one year after the identification of the suspect
by DNA evidence, and that DNA evidence must be analyzed within
two years of the offense for which it was collected. (Pen.
Code, § 680, subd. (b)(6).)
4)Encourages law enforcement agencies to submit rape kits to
crime labs within 20 days after the kit is booked into
evidence. (Pen. Code, § 680, subd. (b)(7)(A)(i).)
5)Encourages the establishment of rapid turnaround DNA programs,
where the rape kit is sent directly from the facility where it
was collected to the lab for testing within five days. (Pen.
Code, § 680, subds. (b)(7)(A)(ii) and (E).)
6)Encourages crime labs to do one of the following:
a) Process rape kits, create DNA profiles when possible,
and upload qualifying DNA profiles into CODIS within 120
days of receipt of the rape kit; or
b) Transmit the rape kit to another crime lab within 30
days to create a DNA profile, and then upload the profile
into CODIS within 30 days of being notified about the
presence of DNA. (Pen. Code, § 680, subd. (b)(7)(B).)
7)Requires law enforcement agencies to inform victims in writing
if they intend to destroy a rape kit 60 days prior to the
destruction of the rape kit, when the case is unsolved and the
statute of limitations has not run. (Pen. Code, §§ 680,
subds. (e) and (f), 803.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "When tested,
DNA evidence can be an incredibly powerful tool to solve and
prevent crime. It can identify an unknown assailant and
confirm the presence of a known suspect. It can affirm the
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survivor's account of the attack and discredit the suspect. It
can connect the suspect to other crime scenes. It can
exonerate innocent suspects.
"However, as we've seen over the past few years, there has been
widespread mismanagement of DNA evidence in sexual assault
cases in many jurisdictions. Survivors of sexual assault who
are submitting sexual assault evidence kits aren't getting the
answers they need and deserve.
"To accomplish these things, however, rape kits must be tested.
Right now, some kits are analyzed, but a vast majority is not.
In California, we know there is a backlog of over 6,100 kits -
but we don't know how long they've been sitting on the shelf,
or if there were or were not legitimate reasons why they were
not tested.
"Currently, there is no comprehensive data on how many rape kits
are collected and the reasons why kits are not tested. To get
at the crux of the backlog problem, we need to know how many
kits are collected each year, and if they're not analyzed, we
need to know why.
"AB 1848 aims to solve this problem by directing law enforcement
agencies to track how many sexual assault evidence kits they
collect and the number of kits they analyze each year, and
further directing agencies to report annually to DOJ their
reasons for not analyzing sexual assault evidence kits.
"Data and transparency are a necessary part of the solution. The
data collected through AB 1848 could help policy makers
consider whether law enforcement agencies' current approaches
in this area need to change or whether or not law enforcement
needs additional resources to better manage the processing of
these kits."
2)CODIS and SAFE-T: According to background submitted by the
author, "The local law enforcement investigator may request
that a crime lab analyze the sexual assault evidence kit to
try to match the DNA profile to a suspect in the
investigation. The lab can then upload the profile to the
combined DNA Index System (CODIS), a network of local, state,
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and federal databases that allows law enforcement agencies to
test DNA profiles against one another. Through this process,
labs will sometimes obtain the name of a previously unknown
suspect or match multiple cases where the suspect remains
unknown.
"The value of DNA evidence in the investigation and
prosecution of sexual assault crimes makes these evidence kits
critical for law enforcement.
"Even in instances where the identity of assailants is known,
forensic analysis often helps identify repeat offenders.
However, there is no state or federal law that requires
agencies to request analysis of every sexual assault evidence
kit."
SAFE-T was created by DOJ in 2015 in part to help track how
many rape kits were not being tested and why, to help
determine the scope of the problem and to determine if
mandatory testing may lead to the apprehension of more repeat
offenders or the exoneration of more criminal defendants.
3)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).)
< https://www.bsa.ca.gov/pdfs/reports/2014-109.pdf >
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
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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.)
4)Argument in Support: According to Attorney General Kamala
Harris, "There is no doubt that forensic evidence is one of
the most powerful investigatory tools made available to law
enforcement in the last century. Analysis of DNA collected at
crime scenes can dramatically enhance investigations into
previously unsolvable cases, and this technology has led to
countless more offenders held accountable. However, when a
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crime scene is the body of a woman who has been sexually
assaulted, the collection of this evidence often comes at the
cost of significant retraumatization. Forensic examination
using what is referred to as a 'rape kit' typically involves a
number of highly invasive procedures and can last several
hours. This process is nevertheless worthwhile when it helps
bring justice to the victim.
"Recent years have seen a loudening outcry over a so-called
'rape kit backlog' in California and nationwide - allegations
that many sexual assault evidence kits, possibly thousands,
remain untested. There is no doubt that when evidence that
could lead to the identification of an unknown assailant goes
unanalyzed without good cause, some miscarriage of justice has
occurred. At the same time, there are myriad reasons why a
local agency a sample may not be tested-many of which may well
be legitimate-including resource limitations and decisions
made as part of the prosecutorial process. In order to
effectively address any perceived epidemic unanalyzed kits, we
must better understand the reasons why kits are not tested.
"A 2014 report by the California State Auditor into this issue
identified two critical areas where data is severely lacking
within the state: First, 'no comprehensive information is
currently available about the number of sexual assault
evidence kits that local law enforcement agencies collect
annually or how many of those kits are analyzed.' Second, 'no
comprehensive data exist about the reasons some sexual assault
evidence kits in California are not analyzed.'
"In response to this audit, the Attorney General's Bureau of
Forensic Services affirmatively created what is known as the
Sexual Assault Forensic Evidence Tracking (SAFE-T) system,
which allows for the collection of precisely this information.
However, there is no requirement that the system be utilized
by local law enforcement.
"AB 1848 will enable state lawmakers to bring data-driven
solutions to a highly emotional issue. The bill would simply
direct local agencies to report to the California Department
of Justice how many kits they collect, and how many they
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analyze. In addition, agencies would be required to provide
the state with vital information on why kits are not submitted
to labs or analyzed. The Attorney General would regularly
report on this information to the Legislature, providing
meaningful illumination to the realities of sexual assault
investigations.
"The Attorney General is proud to support of AB 1848 as a
continuation of her long history of working in support of
forensic analysis. In 2012, this office announced that the
backlog of untested DNA evidence in state labs had been
eliminated for the first time ever; since then, our Bureau of
Forensic Services has assisted counties in clearing their own
backlogs. In 2014, the Attorney General's innovative RADS
program received the United States Department of Justice's
Award for Professional Innovation in Victim Services, and in
2015 the program was awarded a $1.6 million grant to test
sexual assault evidence kits at local laboratories."
5)Argument in Opposition: According to the California State
Sheriffs' Association, "We share your intent that sexual
assaults are investigated and perpetrators not go unpunished.
In 2014, CSSA worked with Assembly Member Nancy Skinner to
amend her AB 1517 into a final product that will help achieve
those goals without being overly burdensome. However, by
requiring law enforcement agencies to provide statistics to
DOJ, AB 1848 will create another unfunded mandate and would
place significant cost burdens on these agencies in terms of
resources and personnel.
"Existing law permits law enforcement to notify a victim about
the status of his or her rape kit upon the victim's request as
well as requires law enforcement to notify a victim if his or
her rape kit is going to be disposed or not tested. We do not
feel that this balanced approach requires alteration.
"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."
6)Related Legislation:
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a) AB 909 (Quirk), would require 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 information pertaining to the processing of rape
kits, including the number of rape kits the law enforcement
agency collects, the number of those rape kits that are
tested, and the number of those rape kits that are not
tested. For those rape kits that are not tested, the bill
would require the law enforcement agency to also report the
reason the rape kit was not tested. This bill is being
held under submission in the Assembly Committee on
Appropriations.
b) AB 2499 (Maienschein), would update the SAFE-T database
to allow victims of sexual assault to have secure access to
the location and information regarding their sexual assault
evidence kits. This bill has been set for hearing in the
Assembly Committee on Public Safety for April 12, 2016.
7)Prior Legislation:
a) AB 1517 (Skinner), Chapter 874, Statutes of 2014,
encourages law enforcement agencies to submit sexual
assault forensic evidence received by the agency to a crime
lab within 20 days after it is booked into evidence, and
ensure that a rapid turnaround DNA program is in place to
submit forensic evidence collected from the victim of a
sexual assault to a crime lab within 5 days after the
evidence is obtained from the victim.
b) AB 558 (Portantino), of the 2009 2010, 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. This bill was vetoed by Governor
Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION:
Support
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Department of Justice (Sponsor)
Alameda County District Attorney's Office
California Coalition Against Sexual Assault
California Partnership to End Domestic Violence
National Council of Jewish Women - California
Planned Parenthood Affiliates of California
Opposition
California State Sheriff's Association
Analysis Prepared
by: Matt Dean / PUB. S. / (916) 319-3744