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.
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