BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:    AB 2499       Hearing Date:    June 28, 2016    
          
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          |Author:    |Maienschein                                          |
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          |Version:   |May 27, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|ML                                                   |
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                       Subject:  Sexual Assault Evidence Kits



          HISTORY

          Source:   Natasha's Justice Project; Alameda County District  
          Attorney

          Prior Legislation:AB 1848 (Chiu), pending in Assembly  
          Appropriations Committee
                         AB 909 (Quirk), pending in Senate Appropriations  
          Committee
                         AB 1517 (Skinner), Chapter 874, Statutes 2014
                         AB 558 (Portantino), 2009-2010 Legislative  
          Session, vetoed by Governor
                         AB 898 (Chu), Chapter 537, Statutes 2003

          Support:  CALCASA; California Police Chiefs Association;  
                    Californians for Safety and Justice; Crime Victims  
                    United of California; Joyful Heart Foundation

          Opposition:None Known

          Assembly Floor Vote:                 80 - 0


          PURPOSE








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          The purpose of this bill is to require the Department of Justice  
          (DOJ), on or before July 1, 2018 to establish a process by which  
          victims of sexual assault may inquire to review the disposition  
          of their rape kit.

          Existing law 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.   
          (Penal Code, §§ 295, 295.1.)

          Existing law 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.   
          (Penal Code, § 680, subd. (b)(6).)



          Existing law encourages law enforcement agencies to submit rape  
          kits to crime labs within 20 days after the kit is booked into  
          evidence.  (Penal Code, § 680, subd. (b)(7)(A)(i).)

          Existing law 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.  (Penal Code, § 680, subds. (b)(7)(A)(ii) and (E).)

          Existing law Encourages crime labs to do one of the following:

             a)   Process rape kits, create DNA profiles when possible,  
               and upload qualifying DNA profiles into the combined DNA  
               Index System (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.  (Penal Code, § 680, subd. (b)(7)(B).)









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          Existing law requires law enforcement agencies to inform victims  
          of sexual assault, as specified, to notify the victim if their  
          rape kit is not tested six months prior to the statute of  
          limitations for underlying sexual assault offense.  (Penal Code,  
          § 680, subd. (d).)

          Existing law requires law enforcement agencies to inform victims  
          of sexual assault, as specified, to notify the victim if the law  
          enforcement agency intends to destroy a rape kit in an unsolved  
          case prior to the expiration of the statute of limitations for  
          the underlying sexual assault offense.  (Penal Code, § 680,  
          subd. (e).)

          Existing law allows law enforcement agencies to inform victims  
          of sexual assault, as specified, of the status of their rape kit  
          when the victim requests an update.  (Penal Code, § 680, subd.  
          (c).)

          Existing law states that sexual assault victims have the  
          following rights, subject to the commitment of sufficient  
          resources to respond to requests for information:

             c)   The right to be informed whether or not a DNA profile of  
               the assailant was obtained from the testing of their rape  
               kit or from other evidence from the crime scene,
             d)   The right to be informed whether or not the DNA profile  
               of the assailant has been entered into DOJ's Data Bank of  
               case evidence, and
             e)   The right to be informed whether or not there was a  
               match between the DNA profile of the assailant and a DNA  
               profile contained in CODIS, provided that disclosure would  
               not impede or compromise an ongoing investigation.  (Penal  
               Code, § 680, subd. (c)(2).)

          Existing law encourages law enforcement to notify victims of  
          information in their possession regarding victims' rape kits.   
          (Penal Code, § 680, subd. (c)(2).)

          This bill requires the Department of Justice (DOJ), on or before  
          July 1, 2018 and in consultation with law enforcement agencies  
          and crime victims groups, to establish a process by which  
          victims of sexual assault may inquire regarding the location and  
          information of their sexual assault evidence kits.









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                    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.   

          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  








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          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.  Stated Need for This Bill

          According to the author:

            Last year the Department of Justice created and implemented  
            the Sexual Assault Forensic Evidence Tracking program of its  
            own volition. We applaud the Department for doing that.  
            However, there is no mechanism in the program for a survivor  
            of sexual assault and rape to track and see the information  
            regarding her/his Rape Kit. The program is purely for internal  
            purposes and to be used by law enforcement agencies only. A  
            victim has no way of knowing where the kit is located in the  
            analysis process or if it has even gotten to that step yet.








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          2.  Background - SAFE-T and the Disposition of Rape Kits

          The Sexual Assault Forensic Evidence Tracking program (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.  SAFE-T is accessible only by law  
          enforcement agencies and DOJ, due to the sensitive investigatory  
          and privacy concerns of the information contained in the  
          database.  The database includes the disposition of rape kits  
          both at the local law enforcement agency investigating the  
          sexual assault allegation and the disposition of rape kits that  
          have been sent to a crime laboratory for testing.  

          Rape kits can have many dispositions.  A law enforcement agency  
          may not refer a rape kit for testing if they do not believe a  
          crime has occurred, if the agency has already identified the  
          suspect, or if the agency believes they do not need further  
          evidence to prosecute.  If the law enforcement agency does refer  
          a rape kit for testing, the investigator may request that a  
          crime lab analyze a rape kit to try to match the DNA profile to  
          a suspect in the investigation. The lab can then upload the  
          profile to CODIS, a network of local, state, and federal  
          databases that allows law enforcement agencies to test DNA  
          profiles against one another.  With access to SAFE-T, victims  
          could see if their rape kit has been referred for testing or if  
          testing has been completed. 

          This bill would create a process in which the victim can view  
          the disposition of their rape kit.
          
          3.  Interaction with AB 1848

          This bill would not provide information regarding why a rape kit  
          has or has not been tested, but AB 1848 (Chiu) would require  
          more information to be entered into SAFE-T that victims would be  
          able to access should both AB 1848 and this bill pass.   
          Currently, neither crime laboratories nor law enforcement  
          agencies are required to test rape kits, nor are they currently  
          required to include in SAFE-T the reasons why any particular  
          rape kit has not been tested.  AB 1848 (Chiu), would require law  
          enforcement agencies to include the reason or reasons why each  








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          rape kit under their control has not been tested.






          4. Argument in Support

          The Alameda County District Attorney stated, in part:

            Law enforcement agencies are not required to track or report  
            the number of sexual assault kits (SAKs) that are collected  
            and how many go unanalyzed.  Due to this lack of requirements,  
            the total number of unanalyzed SAKs statewide is unknown,  
            which deprives victims of justice and closure while allowing  
            perpetrators to walk free.  In 2014, faced with a mounting  
            backlog of agencies to submit to government crime labs to  
            process SAKs we sponsored AB 1517 which created tight  
            timelines for law enforcement agencies to submit to government  
            crime labs to process SAKs.  In 2015, the Department of  
            Justice created a program of its own that would track SAKs in  
            the analysis process.  This program is called the Sexual  
            Assault Forensic Evidence Tracking Program, or SAFE-T, but it  
            does not permit victims to have access to the program to get  
            information regarding the status of their SAK.

            AB 2499 will give a victim of sexual assault to track the  
            process of their SAK kit while it is being analyzed and  
            processed in the crime lab via a secure, electronic process.   
            This will provide victims with the peace of mind by being able  
            to see where their SAK is in the process and ensure that law  
            enforcement is doing their duty to analyze the SAK in a timely  
            manner.
            
                                      -- END -





          










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