BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 813 Hearing Date: April 12, 2016
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|Author: |Leyva |
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|Version: |March 31, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Sex Offenses: Statute of Limitations
HISTORY
Source: California Women's Law Center
Prior Legislation:SB 46 (Alquist) - 2009, failed passage,
Senate Public Safety
SB 256 (Alquist) - 2008, failed passage,
Senate Public Safety
SB 1128 (Alquist) - Ch. 337, Stats. 2006
SB 111 (Alquist) - Ch. 479, Stats. 2005
SB 261 (Speier) - 2005, held in Senate
Appropriations Committee.
AB 1667 (Kehoe) - Ch. 368, Stats. 2004
SBx4 2 (Speier) - Ch. 2, Stats. 2003-04
Fourth Extraordinary Session
AB 78 (Alquist) - Ch. 235, Stats. 2001
AB 1742 (Correa) - Ch. 235, Stats. 2000
ABx1 25 (Andal) - Ch. 46 Ex., Stats. 1994
AB 290 (Boland) - Ch. 390, Stats. 1993
AB 782 (N. Waters) - Ch. 1312, Stats. 89
Support: Alameda County District Attorney; San Bernardino
County District Attorney; California Police
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Chiefs Association; Crime Victims United of
California; National Council of Jewish Women/Los
Angeles; Peace Officers Research Association of
California; several individuals
Opposition:California Attorneys for Criminal Justice;
California Public Defenders Association; American
Civil Liberties Union; Legal Services for
prisoners with Children; Taxpayers for Improving
Public Safety; one individual
PURPOSE
The purpose of this bill is to eliminate any statute of
limitations for specified sex crimes.
Criminal Statute of Limitations Generally
Under current law, statutes of limitations for the
commencement of criminal actions generally are based on the
term of the sentence, the type of offense, or the nature of
the victim, as specified below.
Prosecution for a crime punishable by death, life
imprisonment, life imprisonment without the
possibility of parole, or the embezzlement of public
funds may be commenced at any time.<1> (Penal Code §
799.)
Prosecution for crimes punishable by imprisonment
for eight years or more, as specified, and not
otherwise covered must be commenced within six years
after commission of the offense. (Penal Code § 800.)
Prosecution for crimes punishable by imprisonment
in the state prison or as a jail felony, as specified,
must be commenced within three years after commission
of the offense. (Penal Code § 801.)
-----------------------
<1> Punishment for murder, attempted premeditated and
deliberate murder, kidnapping for purposes of robbery,
extortion, or certain sex offenses are punishable by life
in prison. (Penal Code §§ 190 and 209.)
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Prosecution for crimes involving fraud, breach of a
fiduciary duty, embezzlement of funds from an elder or
dependent adult, or misconduct by a public official
must be commenced within four years after discovery of
the crime or within four years after completion,
whichever is later. (Penal Code § 801.5.)
Prosecution for crimes involving elder or dependent
abuse must be commenced within five years after
commission of the offense. (Penal Code § 801.6.)
Prosecution for misdemeanor crimes involving
molesting a child under the age of 14 years or sexual
misconduct with a patient must be commenced within
three years after commission of the offense. For most
other misdemeanors, prosecution generally must be
commenced within one year after commission of the
offense. (Penal Code § 802.)
Criminal Statute of Limitations for Felony Sex Crimes
Current law provides that the prosecution for a felony sex
offense subject to mandatory sex offender registration, as
specified, must be commenced within 10 years after
commission of the offense. (Penal Code § 801.1.)
Current law provides that the prosecution for inducing a
minor to pose in connection with the production of a
representation of sexual activity involving a minor, must
be commenced within 10 years of the date of production of
the pornographic material. (Penal Code § 801.2.)
Current law further provides that in addition to the
10-year statute of limitations applicable above, a criminal
complaint to be filed in specified child sex crime cases as
follows:
1. If the crime is alleged to have been committed
against a person when that person was under the age of
18, prosecution may commence any time up to the
victim's 40thth birthday (Penal Code § 801.1); or
2. Within one year of the date a person of any age
reports to a California law enforcement agency that he
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or she, while under the age of 18 years, was a victim
of a sex crime, as specified, if all of the following
occur:
a. The limitation period specified in Section 800,
801, or 801.1, whichever is later, has expired;
b. The crime involved substantial sexual conduct, as
specified, excluding masturbation that is not mutual;
and,
c. There is independent evidence that
corroborates the victim's allegation. If the victim
was 21 years of age or older at the time of the
report, the independent evidence shall clearly and
convincingly corroborate the victim's allegation.
(Penal Code § 803 (f).).
Current law provides that notwithstanding any other time
limitation, a criminal complaint may be filed within one
year of the date on which the identity of the suspect is
conclusively established by DNA testing, if both of the
following conditions are met:
1. The crime is one that is subject to mandatory sex
offender registration, as specified; and
2. The offense was committed prior to January 1,
2001, and biological evidence collected in connection
with the offense is analyzed for DNA type no later
than January 1, 2004, or the offense was committed on
or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed
for DNA type no later than two years from the date of
the offense. (Penal Code § 803 (g).)
This Bill
This bill would amend Penal Code section 799 to provide
that the prosecution for the following felony sex crimes
may be commenced at any time:
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rape;<2>
spousal rape;<3>
in concert rape, spousal rape or forcible sexual
penetration;<4>
forcible sodomy;<5>
molestation of a child under the age of 14
involving "substantial sexual conduct;"<6>
molestation of a child under the age of 14 by use
of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person;<7>
continuous sexual abuse of a child under the age of
14; <8>
forcible oral copulation;<9> and
forcible sexual penetration.<10>
This bill provides that its provisions would apply "to
crimes that were committed on or after January 1, 2017, and
to crimes for which the statute of limitations that was in
effect prior to January 1, 2017, has not run as of January
1, 2017."
This bill makes additional technical conforming amendments
to related statutes.
-----------------------
<2> Specifically, paragraph (1), (2), (3), (4), (6) or (7)
of subdivision (a) of Penal Code section 261.
<3> Specifically, paragraph (1), (2), (3), (4), or (5) of
subdivision (a) of Penal Code section 262.
<4> Penal Code section 264.1.
<5> Specifically, paragraph (2) or (3) of subdivision (c)
of, or subdivision (d), (f), (g), (i), or (k) of, Penal
Code section 286.
<6> Specifically, subdivision (a) of Penal Code section 288
involving substantial sexual conduct as defined by in
subdivision (b) of Penal Code section 1203.066.
<7> Specifically, subdivision (b) of Penal Code section
288.
<8> Penal Code section 288.5.
<9> Specifically, paragraph (2) or (3) of subdivision (c)
of, or subdivision (d), (f), (g), (i), or (k) of Penal Code
section 288a
<10> Specifically, subdivision (a), (b), (d), (e), or (g)
of Penal Code section 289.
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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
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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 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
The author states:
Existing California law generally limits the
prosecution of a felony sexual offense to only 10
years after the offense is committed, unless DNA
evidence is found which then offers a victim
additional time. California allows the
prosecution of certain sex offenses against
minors any time before the victim's 40th
birthday.
In 1984, when the California Law Revision
Commission last discussed revisions to the
statute of limitations, it acknowledged that the
time limits proposed for crimes, including felony
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sex offenses, were "somewhat arbitrary." Sexual
assault is a notoriously under-reported and
under-prosecuted form of criminal victimization.
This bill seeks to rid California law of the
arbitrary time limits imposed on the prosecution
of certain serious sexual offenses so that law
enforcement and prosecutors will have a better
chance of being able to bring sexual offenders to
justice, giving more victims the opportunity to
have their day in court.
According to the U.S. Department of Justice, only
two in 100 rapists in the U.S. will be convicted
of a felony and spend any time in prison. The
other 98 percent will never be punished for their
crimes.
2.What This Bill Would Do; Current Limitations "Windows"
As explained above, this bill would change the statute of
limitations for the following specified felony sex crimes,
allowing them to be commenced at any time:
rape;
spousal rape;
in concert rape, spousal rape or forcible sexual
penetration;
forcible sodomy;
molestation of a child under the age of 14
involving "substantial sexual conduct;"
molestation of a child under the age of 14 by use
of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person;
continuous sexual abuse of a child under the age of
14;
forcible oral copulation; and
forcible sexual penetration.<11>
This bill would not revive cases where the applicable
statute of limitations has expired before the provisions of
this bill become effective, which is compliant with
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<11> See footnotes 2-10, supra, for the specific Penal Code
citations for these offenses.
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applicable constitutional law.<12>
As described above in more detail, California's statute of
limitations law currently provides four statutory "windows"
for commencing prosecutions of sex crimes:
The first window is the general limitations
period for prosecuting sex crimes, which is 10
years from when the crime was committed.<13>
(Penal Code § 801.1 (b).)
The second window applies if the crime is
alleged to have been committed against a person
when that person was under the age of 18, in which
case prosecution may commence any time up to the
victim's 40th birthday.<14> (Penal Code §
801.1.).
A third window allows that when the 10-year
limitations period has lapsed, a criminal
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<12> In the 1990s, California enacted legislation to
revive otherwise expired child sexual abuse cases to apply
the newly extended limitation periods to these old cases.
These revival provisions, however, were struck down in 2003
by the United States Supreme Court in Stogner v. California
(2003) 123 S.Ct. 2446. In Stogner, the Court ruled that a
law enacted after expiration of a previously applicable
limitations period violates the Ex Post Facto Clause when
it is applied to revive a previously time-barred
prosecution. The Court concluded that the bill in question
threatened the very kind of harm that the Ex Post Facto
Clause seeks to avoid. The Court noted that the statute
deprived the defendant of the "'fair warning that might
have led him to preserve exculpatory evidence," and warned
that "a Constitution that permits such an extension, by
allowing legislatures to pick and choose when to act
retroactively, risks both 'arbitrary and potentially
vindictive legislation. . . .'" Stogner, at 2449-2450
(citations omitted).
<13> This limitations period was established by AB 1667
(Kehoe) (Ch. 368, Stats. 2004.)
<14> This limitations period was established originally
in 2005 by SB 111 (Alquist) (Ch. 479, Stats. 2005) and
changed in 2014 by SB 926 (Beall)(Ch. 921, Stats. 2014.)
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complaint may be filed within one year of the date
a person of any age reports to law enforcement
that they were a victim of a child sex crime, if
a) the crime involved "substantial sexual
conduct", as specified;<15> and b) there is
independent evidence that corroborates the
victim's allegation, which must be proved by clear
and convincing evidence if the victim is 21 years
of age or older at the time of the report.<16>
(Penal Code § 803 (f).)
A fourth window is available at all times: a
criminal complaint may be filed within one year of
the date on which the identity of a suspect is
conclusively established by DNA testing in sex
crime cases if the DNA is analyzed in a timely
manner, as specified.<17> (Penal Code § 803 (g).)
3.Operation of and Public Policy Behind the Statute of
Limitations; Policy Questions Raised by This Bill
The statute of limitations requires commencement of a
prosecution within a certain period of time after the
commission of a crime. A prosecution is initiated by
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<15> "Substantial sexual conduct" for purposes of this
section cross-references Penal Code Section 1203.066 (b),
excluding "masturbation that is not mutual." "Substantial
sexual conduct" is penetration of the vagina or rectum of
either the victim or the offender by the penis of the other
or by any foreign object, oral copulation, or masturbation
of either the victim or the offender. (§ 1203.066 (b).)
"Masturbation of either the victim or the offender" means
"any touching or contact, however slight, of the genitals
of either the victim or the offender." (People v.
Chambless (1999) 74 Cal.App.4th 773 [defendant touched
girl's vagina and made her touch his penis].) Mutual
masturbation shown where defendant rubbed Vaseline on a
boy's penis. (People v. Lamb (1999) 76 Cal.App.4th 664,
678-679.)
<16> This limitations period was established by AB 78
(Alquist)(Ch. 235, Stats. 2001) and amended by AB 1667
(Kehoe)(Ch. 368, Stats. 2004).
<17> This limitations period was enacted by AB 1742
(Correa) (Ch. 235, Stats. 2000).
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filing an indictment or information, filing a complaint,
certifying a case to superior court, or issuing an arrest
or bench warrant. (Penal Code § 804.) The failure of a
prosecution to be commenced within the applicable period of
limitation is a complete defense to the charge. The
statute of limitations is jurisdictional and may be raised
as a defense at any time, before or after judgment.
(People v. Morris (1988) 46 Cal.3d 1, 13.) The defense may
only be waived under limited circumstances. (See Cowan v.
Superior Court (1996) 14 Cal.4th 367.)
In 1984, the California Law Revision Commission published a
series of recommendations to revise the statute of
limitations. The impetus for reform derived from numerous
changes made to the statute by the Legislature - there were
11 legislative enactments amending the felony statute of
limitations in 14 years. The Commission commented, "[t]his
simple scheme has been made complex by numerous
modifications . . . the result of this development is that
the California law is complex and filled with
inconsistencies." The Commission described the rationale
of the statute:
The statute of limitations is simply a societal
declaration that it will no longer pursue a
criminal after a certain period of time. The
period selected may be somewhat arbitrary but
still achieves society's purpose of imposing an
outside limit that recognizes the staleness
problem, that requires that crime must come to
light and be investigated within a reasonable
time, and that represents the point after which
society declares it no longer has an interest in
prosecution and seeks repose.
The three principal policy reasons for felony limitations
statutes include:
Staleness: The statute of
limitations protects persons accused of
crime: (i) from having to face charges
based on evidence that may be unreliable,
and (ii) from losing access to the
evidentiary means to defend against the
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accusation. With the passage of time,
memory fades, witnesses die or otherwise
become unavailable, and physical evidence
becomes unobtainable or contaminated.
Prompt Investigation: The statute of
limitations imposes a priority among
crimes for investigation and prosecution.
The deadline serves to motivate the police
and to ensure against bureaucratic delays
in investigating crimes.
Repose: The statute of limitations
reflect society's lack of desire to
prosecute for crimes committed in the
distant past. The interest in repose
represents a societal evaluation of the
time after which it is neither profitable
nor desirable to commence a prosecution.
These principals are reflected in court decisions. The
United States Supreme Court has stated that statutes of
limitations are the primary guarantee against bringing
overly stale criminal charges. (United States v. Ewell
(1966) 383 U.S. 116, 122.) There is a measure of
predictability provided by specifying a limit beyond which
there is an irrebutable presumption that a defendant's
right to a fair trial would be prejudiced. Such laws
reflect legislative assessments of relative interests of
the state and the defendant in administering and receiving
justice. More recently, in Stogner v. California (2003)
123 S.Ct. 2446, the Court underscored the basis for
statutes of limitations:
Significantly, a statute of limitations reflects
a legislative judgment that, after a certain
time, no quantum of evidence is sufficient to
convict. And that judgment typically rests, in
large part, upon evidentiary concerns - for
example, concern that the passage of time has
eroded memories or made witnesses or other
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evidence unavailable.<18>
Members and the author may wish to discuss this bill in the
context of these broader policy considerations, including:
WOULD THIS BILL AFFECT THE AVAILABILITY AND RELIABILITY OF
EVIDENCE IN SEX CRIME CASES AND, IF SO, HOW?
WOULD THIS BILL AFFECT THE REPORTING AND INVESTIGATION OF
SEX CRIME CASES AND, IF SO, HOW?
WOULD THIS BILL AFFECT THE SUCCESSFUL PROSECUTION OF SEX
CRIME CASES AND, IF SO, HOW?
4.Considerations in Support of This Bill
In an opinion piece published earlier this year,
supporters of this bill submitted in part:
Victims of sexual assault contend with a wide
range of often overwhelming after-effects. They
wrestle with emotions of shock, fear, anxiety,
grief, rage, shame, helplessness and self-blame.
Psychological disorders such as posttraumatic
stress disorder or dissociation may also trouble
these victims, as may physical problems including
eating and sleep disorders. Victims may be
reticent to burden others with their problems and
they may suffer with a loss of a sense of order
or fairness in the world. Substance abuse,
self-harm or attempted suicide are not uncommon
expressions of a victim's inchoate rage and
despair.
Given the variety of mental, physical and
emotional issues that a rape or sexual assault
victim grapples with, it is no surprise that not
all are ready to report their attack at the same
time. . . .
Victims must deal with the police and the
prosecutor, both of whom have an extraordinary
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<18> Stogner, supra, 123 S.Ct. at 2452 (citations
omitted).
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amount of power over whether and how their cases
will proceed. Once a victim reports his or her
attack, the case is taken out of their hands. The
police decide whether they believe a crime has
occurred and how to investigate it, whether to
arrest an identified suspect and whether to refer
the case to the prosecutor. . . .
If the case is referred to the prosecutor, the
victim is subject to the prosecutor's decision to
file charges. While prosecutors decide based on
legal factors, the victim's character invariably
enters the equation. He or she may be inundated
with questions concerning his or her age,
occupation, and education or about "risk-taking"
behavior such as drinking or drug use. . . . If
the prosecutor elects to bring the case to trial,
victims fear public exposure and harassment from
the defense and the public.
. . . To report a rape or assault takes courage
. . . . Given all this, it is of no surprise that
some victims may take a good length of time to
come forward, if they ever do.
This "good length of time" may be a week, a year,
10 years, 20 years. There is no exact science for
predicting when victims may be ready to report.
In fact, in 1984 when the California Law Revision
Commission last discussed revisions to the
statute of limitations, it acknowledged that the
time limits proposed for crimes, including felony
sex offenses, were "somewhat arbitrary." The
10-year mark that has been held as an effective
benchmark is instead an assumption of what an
appropriate time limit would be. Time and
awareness have proven this assumption incorrect.
. . .
SB 813 is not a radical proposal. The district
attorney would still maintain prosecutorial
discretion and could decline to prosecute if
there is insufficient evidence to convict.
Further, if the District Attorney decided to
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prosecute, the case would still have to be proven
beyond a reasonable doubt.
What SB 813 would do is leave the door open for
victims to report their attacks when they feel
ready. Rape and sexual assault are not like other
crimes and should not be treated as such. . .
.<19>
5.Considerations in Opposition to this Bill
The American Civil Liberties Union, which opposes this
bill, states in part:
Criminal statutes of limitations in the United
States date back to colonial times, with the
first such statute appearing as early as 1652.
The statutes' fundamental purpose is to protect
people accused of crimes from having to face
charges based on evidence that may be unreliable,
and from losing access to the evidentiary means
to defend against the accusation. The United
States Supreme Court has stated that statutes of
limitations are considered "the primary guarantee
against bringing overly stale criminal charges"
and that they "protect individuals from having to
defend themselves against charges when the basic
facts may have become obscured by the passage of
time?" . . .
With the passage of time, memories fade,
witnesses die, records and biological evidence
are lost or destroyed. All of this makes it more
likely that an innocent person will be wrongly
convicted.
In a recent piece in the Daily Journal,
psychology Professor Elizabeth Loftus raised
concerns about SB 813, specifically with respect
to the ways in which criminal statutes of
limitations protect against deficits in witness'
memories. As Professor Loftus explained, "a
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<19> Butler and Sharp, Bill Could Help Rape Victims, and
Others (Published in the Daily Journal Feb. 8, 2016).
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growing body of research, including [her] own,
has found that, contrary to what some may think,
the human memory is not like a recording device.
You can't perfectly preserve events, to be played
or rewound and replayed at will. Instead, our
memories are more like a Wikipedia page: they
can be edited by us and other people, and more so
with each year that goes by." As she explained,
"[s]cientists have long known about the
'forgetting curve,' which revealed that, as time
passes, people are unable to retrieve information
that they would have earlier be[en] able to
remember accurately. The loss of memory can be
quite significant, especially after many years go
by."
The memory issues raised by Professor Loftus
apply equally to all parties involved in a
criminal prosecution: defendants, detectives,
witnesses, and victims alike. SB 813 is
particularly concerning because the bill
specifically addresses cases in which there is
likely no DNA evidence, and where the primary
evidence being used is witness testimony based on
memories that are at least 10 years old, if not
decades older.
. . . SB 813 . . . would address cases that do
not fit within any of (the existing) . . .
carefully tailored exceptions: cases with little
to no physical evidence, which rely almost if not
entirely on memory. Cases for which statutes of
limitations are specifically designed.
. . . (S)tatutes of limitations also serve the
purpose of encouraging swift investigations and
prosecutions. Survivors of sexual violence
already face significant barriers when attempting
to access the criminal justice system following
the commission of a crime. Studies have found
that, depending on the data source, police
officers judge that 1% to 70% of rape reports are
false. These types of attitudes result in
delayed investigations and deprioritization of
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forensic resources. A recent state audit found
that nearly half of the rape kits at the selected
law enforcement agencies were never analyzed.
Countless other kits sit on evidence shelves
across California. . . .
Problems with law enforcement perceptions bleed
into prosecutorial decisions as well. While
police deem just a fraction of sexual assault
cases worthy of investigation, studies document
that prosecutors have approached suspiciously
even those cases that police deemed to have the
strongest evidence of sexual assault.
SB 813 does not address these core causes of
under-prosecution of sex crimes. Moreover, if SB
813 becomes law, these problems may actually grow
worse, with survivors coming forward after many
years of silence only to be faced with law
enforcement officers who may not believe them and
prosecutors who say they cannot proceed because
there is not enough evidence to ethically do so.
Rather than expanding the statute of limitations,
the Legislature should be directing its attention
towards investigating and resolving the cases
already languishing in departments across the
state and investing in comprehensive services and
tools for survivors and effective prevention
strategies.
-- END -