BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 558 (Portantino)
As Amended April 5, 2010
Hearing date: June 15, 2010
Penal Code
AA:mc
SEXUAL ASSAULT:
RAPE KIT EVIDENCE
HISTORY
Source: Author
Prior Legislation: AB 1017 (Portantino) - 2009, vetoed
Support: Crime Victims Action Alliance; City of West Hollywood
Opposition:California State Sheriffs' Association; California
Law Enforcement Association of Records Supervisors
Assembly Floor Vote: Ayes 72 - Noes 0
KEY ISSUE
SHOULD LAW ENFORCEMENT AGENCIES THAT TAKE OR PROCESS RAPE KIT
EVIDENCE BE REQUIRED TO REPORT CERTAIN INFORMATION CONCERNING THE
TESTING AND DESTRUCTION OF RAPE KITS TO THE DEPARTMENT OF JUSTICE,
AS SPECIFIED?
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PURPOSE
The purpose of this bill is to require law enforcement agencies
that take or process rape kit evidence to report specified
information concerning the testing and destruction of that
evidence to the Department of Justice.
Current law sets forth the "Sexual Assault Victims' DNA Bill of
Rights," which enumerates in statute certain provisions
pertaining to victim notification of certain information
relating to their case, as specified. (Penal Code 680.)
Current law provides that notwithstanding any other limitation
of time, 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:
The crime is one that is described in the sex offense
registration statute; and,
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)(1)(A)(B).)
Current law provides that a criminal complaint may be filed
within one year after a report to a law enforcement agency that
a person was the victim of a sexual offense while under the age
of 18 years. To file such a complaint, the applicable
limitation period must have expired and the alleged crime must
have involved substantial sexual conduct corroborated by
evidence, as specified. (Penal Code 803 (g)(1) and (h)(1).)
This bill would require each local law enforcement agency
responsible for taking or processing rape kit evidence to
collect the following information for rape kits collected on or
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after January 1, 2011:
(1) The total number of rape kits received during the
preceding calendar year and, of that total, the number of
rape kits for which the identity of the assailant is
unknown and the number of rape kits for which the identity
of the assailant is contested.
(2) The total number of rape kits tested during the
preceding calendar year and, of that total, the number of
rape kits for which the identity of the assailant is
unknown and the number of rape kits for which the identity
of the assailant is contested.
(3) The total number of rape kits that law enforcement has
requested be tested and, of that total, the number of rape
kits for which the identity of the assailant is unknown and
the number of rape kits for which the identity of the
assailant is contested.
(4) The number of rape kits that law enforcement has
requested be tested that remain untested and, of that
number, the number of rape kits for which the identity of
the assailant is unknown and the number of rape kits for
which the identity of the assailant is contested.
(5) The total number of untested rape kits in its possession
as of January 1 of the reporting year.
(6) The total number of rape kits destroyed during the
preceding calendar year.
This bill would require each local law enforcement agency
responsible for taking or processing rape kit evidence to
report, by July 1 of each year, the information collected
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pursuant to this section during the preceding year to the
Department of Justice (DOJ). The initial report to the
department pursuant to this subdivision would be required to be
made by July 1, 2012.
This bill would provide that the reports received by DOJ would
be subject to inspection under the California Public Records
Act.
The provisions of this bill would be operative until July 1,
2016, and sunset on January 1, 2017.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
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. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The author states:
In 2008, it was discovered that the City and County
of Los Angeles had over 10,000 unopened rape kits in
their evidence lockers. Of these, the City of Los
Angeles alone had 403 unopened rape kits that were
the result of stranger rapes.
It is na?ve to believe that the Los Angeles area is
the only community in the state that is not testing
its rape kits. AB 558 will restore accountability
in the processing of rape kit evidence.
AB 558 will require all law enforcement agencies to
report to the DOJ their statistics on the numbers of
rape kits that they collect and test and the numbers
of these tests that are stranger rapes or where the
identity of the assailant is contested. This bill
will require that only those kits that are collected
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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after the effective date of the measure are to be
categorized and reported.
Most local governments currently use the Department
of Justice criminal lab to test their rape kits.
Although not ultimately adopted, last year the LAO
and several of the 2009 budget bills proposed
requiring the DOJ crime lab to start billing local
government for services such as testing rape kits.
Such a practice would create a tremendous financial
disincentive to test rape kits. While not all rape
kits need to be tested, passage of AB 558 will
provide accountability for those kits that do need
to be tested. This will allow California to track
the testing of rape kits by our local law
enforcement agencies and ensure justice for the
victims of a horrible crime.
Rape kits are evidence of crime. In order to remain
admissible in a criminal trial, such evidence must
be logged as it comes in and tracked and maintained
so that the law enforcement "chain of custody" is
established. To fail to do so, will cause the
evidence to be inadmissible in a court of law.
There is no "backlog" reporting in AB 558 in that
law enforcement will only categorize and report on
kits that come in after the effective date of the
bill. The costs of AB 558 will be minor because
local law enforcement has to log and track evidence
anyway. They can collect the information when the
kits are logged in as evidence and report on the
totals when required to the DOJ.
This measure is the same bill as AB 1017 of last
year which was supported by the California Coalition
against Sexual Assault, Crime Victims United and
numerous other organizations. It received
bi-partisan support and there were no, "NO" votes.
2. What This Bill Would Do; Previous Legislation Vetoed
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This bill would require local law enforcement agencies
responsible for rape kit evidence to collect specified aggregate
information about rape kits, detailed above, and to report that
information to the Department of Justice, as specified.
As noted by the author, this bill is very similar to his AB
1017, passed by this Committee unanimously and the Legislature
last year but vetoed by Governor Schwarzenegger. The veto
message stated in part:
I strongly support efforts to ensure that rape kits
are analyzed and
processed in a timely manner in order to identify
and prosecute sex offenders. However, requiring
law enforcement agencies to provide backlog
statistics to the DOJ would place significant cost
burdens on these agencies and would divert scarce
resources away from processing these kits. In
addition, this measure does not require the DOJ to
do anything with the reports received. Assuming
that the DOJ would have to administer, collect, and
manage these records, this could impose additional
cost pressures on the DOJ.
Since this measure would create additional state
costs that cannot be accommodated in a time of
fiscal crisis, I am returning this bill without
my signature.
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3. Background: Processing of Rape Kits
In the fall of 2008, then-Los Angeles City Controller Laura
Chick issued a report citing a significant backlog of rape kits
that had not been DNA tested. As explained in an October 21,
2008, article in the Los Angeles Times:
Los Angeles police officials have allowed the deadline
for prosecuting as many as 200 potential sexual
assault cases to pass without testing DNA evidence
that might have resulted in a suspect's
identification, according to a city audit released
today.
The 200 cases were part of an overall backlog of 7,000
sexual assault test kits that have not been examined
by the LAPD. Each kit contains a potential genetic
road map to the perpetrator of a crime. . . .
According to the city audit, there are 217 rape kits
that have sat on the shelves in LAPD property rooms
that are beyond the 10-year statute in which to
prosecute the crimes. . . .
Auditors also found that the LAPD was failing to
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comply with a state law that requires sexual assault
victims to be notified by the police if their rape
kits are not tested within a two-year period. If
authorities had made those notifications, the statute
of limitations would have been extended.<2>
A news article from March of 2009 further described the
situation in Los Angeles:
Since the controversy erupted, LAPD detectives have
counted a total of 9,911 sexual-assault cases in the
freezers. Of those, 4,718 were previously tested and
5,193 were not tested. Of the untested cases, 403
were "stranger rapes," in which DNA testing could have
netted a solid suspect by now; 1,184 were "cleared by
arrest," making DNA tests unnecessary; and 1,796 were
rejected by D.A. Cooley, usually because of a
hard-to-prosecute "he said, she said" situation or
because the
victim refused to cooperate. Now, with 200 rape cases
left for so long that they are too old to prosecute,
and an unknown number of crimes lurking in the other
long-frozen rape kits, it seems doubtful L.A. will
ever match the science-based crime-fighting of New
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<2> 200 sex assault cases pass prosecution deadline before
LAPD tested DNA kits (Los Angeles Times, Oct. 21, 2008).
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York City.<3>
4. Opposition
The California State Sheriffs' Association and the California
Law Enforcement Association of Records Supervisors oppose this
bill, submitting it "will have significant fiscal impacts on
local law enforcement agencies. . . .
We recognize and share (the author's) intent to ensure
that rape kits are analyzed and processed in a timely
manner in order to identify and convict offenders of
these heinous crimes. However, doing so by requiring
law enforcement agencies to provide backlog statistics
to DOJ would place significant cost burdens on these
agencies in terms of resources and personnel and
consequently, would inadvertently hamper our ability
to process these kits. . . .
. . . Due to the fiscal and workload implications of
this bill, we must respectfully oppose AB 558.
DO THE WORKLOAD AND FISCAL IMPACTS OF THIS BILL OUTWEIGH ITS
INTENDED GOALS OF THIS BILL?
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<3> DNA Deep Freeze (LA Weekly, March 18, 2009). ("New York
stood out as a big metropolitan area that's doing it right. The
Los Angeles Police Department stood out too - as what critics
see as a DNA disaster zone. L.A. is so many years behind New
York's Office of the Medical Examiner in testing long-stored DNA
from sexual-assault cases that the LAPD would need millions of
dollars - and a top-level initiative from Chief William Bratton
- to ever hope to catch up. . . . In stark contrast to L.A.,
New York tests all its DNA evidence, including that recovered
from burglary scenes, and performs "touch DNA" tests - analyzing
such minuscule traces that they can match the sweat left in
fingerprints.")