BILL ANALYSIS                                                                                                                                                                                                    



              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  


              -----------------------
              <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  
                 -------------------
              <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  
              -----------------------
              <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  


                   ------------------
              <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  


                   ------------------
              <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.


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