BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1017 (Portantino and Brownley) 7
As Amended June 1, 2009
Hearing date: July 2, 2009
Penal Code
AA:mc
SEXUAL ASSAULT:
RAPE KITS
HISTORY
Source: Author
Prior Legislation: None
Support: City of West Hollywood; San Francisco Women's Political
Committee; California
Commission on the Status of Women; California Coalition Against
Sexual Assault; Crime Victims United of California
Opposition:Department of Finance
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD LAW ENFORCEMENT AGENCIES THAT TAKE OR PROCESS RAPE KIT
EVIDENCE BE REQUIRED TO REPORT CERTAIN INFORMATION CONCERNING THE
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TESTING AND DESTRUCTION OF RAPE KITS TO THE DEPARTMENT OF JUSTICE,
AS SPECIFIED?
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
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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 law enforcement agency responsible
for taking or processing rape kit evidence to annually report,
by July 1 of each year, the following to the Department of
Justice:
1) the total number of rape kits received during the preceding
calendar year;
2) the total number of rape kits tested during the preceding
calendar year;
3) the total number of untested rape kits in its possession as
of January 1 of the reporting year; and
4) the total number of rape kits destroyed during the preceding
calendar year.
This bill would require that the initial report to the
department include available statistics for the previous five
years.
This bill would require that each law enforcement agency
annually report to the Department of Justice the total number of
sexual assault crimes reported in its jurisdiction that would
require an offender convicted of the crime to register as a sex
offender, and that the report be provided to the department in a
form that reports the crimes by the code section violated.
This bill would make these provisions operative only until July
1, 2015, and sunset them on January 1, 2016.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
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California's prison population has increased by 125 percent (an
average of 4 percent annually) over the past 20 years, growing
from 76,000 inmates to 171,000 inmates, far outpacing the
state's population growth rate for the age cohort with the
highest risk of incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many prisoners
for the existing capacity. The Governor, the
principal defendant, declared a state of emergency in
2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44-the age cohort with the highest risk for
incarceration-grew by an average of less than 1 percent
annually, which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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1. Stated Need for This Bill
The author states:
AB 1017 will require all local law enforcement
agencies in the state to report to the Department of
Justice the total number rape kits in their possession
that have not been tested or analyzed. The report
shall cover the number of kits by year and shall
initially cover the past five years.
It was only after disclosure of the large backlogs of
unopened kits in Los Angeles and the resulting public
outrage that the City and County of Los Angeles
finally agreed to inventory the number of untested
rape kits in their evidence lockers.
AB 1017 will provide for open government in our law
enforcement agencies by requiring them to disclose how
many rape kits they have not tested. Our communities
should know what their law enforcement agencies are
doing with the evidence of rapes and sexual crimes.
AB 1017 will also require local law enforcement
agencies to report the number of unopened rape kits
that have been destroyed and their policies for doing
so.
2. What This Bill Would Do
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As explained above, this bill would require law enforcement
agencies that take or process rape kit evidence to annually
report the following information to the Department of Justice
(DOJ):
1) total number of rape kits received during the preceding
calendar year;
2) total number of rape kits tested during the preceding
calendar year;
3) total number of untested rape kits in its possession as of
January 1 of the reporting year; and
4) total number of rape kits destroyed during the preceding
calendar year.
The first report would be required to include available
statistics for the previous five years.
This bill also would require local law enforcement to provide
DOJ with an annual report of "the total number of sexual assault
crimes reported in its jurisdiction that would require an
offender convicted of the crime to register as a sex offender,
and that the report be provided to the department in a form that
reports the crimes by the code section violated."
This bill would sunset on January 1, 2016.
3. Purpose of the Reporting; Suggested Amendment
This bill would require law enforcement agencies to report
specified data about rape kits to DOJ annually, but is silent on
what if anything DOJ would be required to do with these reports.
The author and/or members of the Committee may wish to consider
whether this bill should be amended to require DOJ to produce an
annual report describing the information.
SHOULD THIS BILL BE AMENDED TO REQUIRE DOJ TO PREPARE AN ANNUAL
REPORT DESCRIBING THE DATA COLLECTED?
4. Sex Assault Crime Information
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As currently drafted this bill would require law enforcement
agencies to report to DOJ the total number of sexual assault
crimes reported in its jurisdiction that would require an
offender convicted of the crime to register as a sex offender,
and that the report be provided to the department in a form that
reports the crimes by the code section violated. DOJ currently
produces annual reports which include arrests for sex offenses.
The author and/or the Committee may wish to consider whether the
data now being collected might be sufficient for purposes
related to this bill.
5. Background: Processing of Rape Kits
Last fall, 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. . . .
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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
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.<3>
A more recent news article from March of this year further
describes 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
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<3> 200 sex assault cases pass prosecution deadline before
LAPD tested DNA kits (Los Angeles Times, Oct. 21, 2008).
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of New York City.<4>
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<4> 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.")