BILL ANALYSIS �
AB 322
Page 1
Date of Hearing: April 12, 2011
Counsel: Stefani Salt
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 322 (Portantino) - As Introduced: February 9, 2011
As Proposed to be Amended in Committee
SUMMARY : Requires local law enforcement agencies responsible
for taking or collecting rape kit evidence to annually report to
the Department of Justice (DOJ) statistical information
pertaining to the testing and submission for DNA analysis of
rape kits, as specified. Specifically, this bill :
1)Mandates that each local law enforcement agency responsible
for taking or collecting rape kit evidence must collect the
following information for rape kits collected on or after
January 1, 2012:
a) The total number of rape kits collected during the
preceding calendar year and, of that total, the number of
rape kits for which the identity of the assailant is
unknown.
b) 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.
c) The total number of rape kits submitted for DNA analysis
and, of that total, the number of rape kits for which the
identity of the assailant is unknown.
d) The number of rape kits that law enforcement has
submitted for DNA analysis that remain untested and, of
that number, the number of rape kits for which the identity
of the assailant is unknown.
e) The total number of untested rape kits that were not
submitted for DNA analysis in its possession as of January
1 of the reporting year.
AB 322
Page 2
2)Provides that each local law enforcement agency responsible
for taking or collecting rape kit evidence shall report, by
July 1 of each year, the information collected, as specified,
during the preceding year to the DOJ. The initial report to
the DOJ, as specified, shall be made by July 1, 2013. The
reports received by the DOJ are subject to inspection under
the California Public Records Act, as specified.
3)Mandates that law enforcement agencies that collect a rape
kit, on or after July 1, 2012, in connection with an
investigation into an allegation of the crime of rape, shall
submit that rape kit for testing within 30 business days of
collection to a forensic laboratory. Rape kits collected by a
law enforcement agency prior to July 1, 2012, shall be
submitted to a forensic laboratory, as specified.
4)Requires the DOJ to establish a reasonable timeframe mandating
when local law enforcement agencies shall submit those rape
kits collected prior to July 1, 2012, in order to comply with
the testing requirements, as specified, that all of those rape
kits be tested by January 1, 2014. Notes that nothing in law
shall prohibit or prevent local law enforcement agencies from
submitting rape kits for testing sooner than deadlines
established by the DOJ.
5)Mandates that all rape kits submitted to a forensic laboratory
on or after July 1, 2012 must be analyzed within six months
after receipt by the laboratory if sufficient staffing and
resources are available.
6)States that, by January 1, 2014, the DOJ shall submit to the
Governor and both houses of the Legislature a plan for
collecting and testing rape kits submitted pursuant to the
language of this bill and Government Code provisions. The
plan shall review the six-month timeline required for
submitting and testing rape kits and shall include, but not be
limited to, recommendations as to appropriate changes, if any,
to the six-month timeline for completion and analysis of rape
kits submitted after July 1, 2012, a summary of the inventory
received, as well as requests for funding and resources
necessary to meet the established timeline or recommended
changes to that timeline.
7)Requires that, by July 1, 2013, each California law
enforcement agency shall provide written notice, in a form and
AB 322
Page 3
manner prescribed, to the DOJ, stating the number of rape kits
in the custody of the law enforcement agency that have not
been previously submitted to a laboratory for analysis. By
January 1, 2014, appropriate arrangements shall be made
between the law enforcement agency and DOJ, to ensure that all
rape kits collected prior to July 1, 2012 have been tested.
8)Declares that the failure of a law enforcement agency to
submit a rape kit collected on or after July 1, 2012 within 30
business days after receipt shall in no way alter the
authority or responsibility of the law enforcement agency to
submit a rape kit for testing.
9)Authorizes the DOJ to promulgate rules that prescribe the
procedures for the operation of the requirements for testing
rape kits, as specified including such emergency regulations
as necessary.
10)Sunsets provisions of this bill on July 1, 2017, to be
repealed on January 1, 2018, unless a later enacted statute,
enacted before January 1, 2018, deletes or extends that date.
11)Finds and declares the following:
a) It is the intention of the State of California that all
rape kits collected by California law enforcement agencies
as evidence of the crime of rape be submitted to a forensic
laboratory and tested within designated timeframes.
b) A national organization has recently reported that one
in six women and one in 33 men will be sexually assaulted
in their lifetimes, but only 6% of rapists will ever spend
a day in jail.
c) Using statistics as reported in 2008 to DOJ it is
evident that many California counties are not doing enough
to arrest perpetrators of the crime of rape. While the
arrest rate for rape in New York City, a city that tests
all rape kits, has been reported at 70%; the California
county average is only 29.7%.
d) Many counties in California have reported arrest rates
for the crime of forcible rape that are as low as 0%.
There are many counties that record arrests for less than
18% of the forcible rapes that occur in their county.
AB 322
Page 4
e) Rape kits are collected after an allegation of rape and
contain tangible, direct DNA evidence of the crime
committed. Past history has shown that many counties are
not processing all the rape kits that are being collected.
Los Angeles County and the City of Los Angeles were shown
in 2008 to have at least 10,000 unopened rape kits in their
evidence lockers. Los Angeles County has committed to
testing every rape kit and has seen its arrest rate rise
from 23.7% in 2006 to 29.7% in 2008. Testing of all rape
kits in California will increase the arrest rate for the
crime of rape
EXISTING LAW :
1)States that upon request of a sexual assault victim the law
enforcement agency investigating a violation of specified
violent sex offenses, may inform the victim of the status of
the DNA testing of the rape kit evidence or other crime scene
evidence from the victim's case. The law enforcement agency
may, at its discretion, require that the victim's request be
in writing. The law enforcement agency may respond to the
victim's request with either an oral or written communication,
or by electronic mail, if an electronic mail address is
available. Nothing in this subdivision requires that the law
enforcement agency communicate with the victim or the victim's
designee regarding the status of DNA testing absent a specific
request from the victim or the victim's designee. �Penal Code
Section 680(c)(1).]
2)Provides that subject to the commitment of sufficient
resources to respond to requests for information, sexual
assault victims have the following rights: the right to be
informed whether or not a DNA profile of the assailant was
obtained from the testing of the rape kit evidence or other
crime scene evidence from their case; the right to be informed
whether or not the DNA profile of the assailant developed from
the rape kit evidence or other crime scene evidence has been
entered into the DOJ Data Bank of case evidence; and, the
right to be informed whether or not there is a match between
the DNA profile of the assailant developed from the rape kit
evidence or other crime scene evidence and a DNA profile
contained in the DOJ Convicted Offender DNA Data Base,
provided that disclosure would not impede or compromise an
ongoing investigation. �Penal Code Section 680(c)(2)(A) to
AB 322
Page 5
(C).]
3)States this law is intended to encourage law enforcement
agencies to notify victims of information which is in their
possession. It is not intended to affect the manner of or
frequency with which the DOJ provides this information to law
enforcement agencies. �Penal Code Section 680(c)(3).]
4)Mandates that if the law enforcement agency elects not to
analyze DNA evidence within the time limits established by
provisions of law related to the statute of limitations, a
victim of a sexual assault offense, as specified, where the
identity of the perpetrator is in issue, must be informed,
either orally or in writing, of that fact by the law
enforcement agency. �Penal Code Section 680(d).]
5)States legislative intent that a law enforcement agency
responsible for providing information, as specified, does so
in a timely manner and, upon request of the victim or the
victim's designee, advises the victim or the victim's designee
of any significant changes in the information of which the law
enforcement agency is aware. In order to be entitled to
receive notice under this section, the victim or the victim's
designee shall keep appropriate authorities informed of the
name, address, telephone number, and electronic mail address
of the person to whom the information should be provided, and
any changes of the name, address, telephone number, and
electronic mail address, if an electronic mailing address is
available. �Penal Code Section 680(h).]
6)Provides notwithstanding any other limitation of time
described in this chapter, 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:
a) The crime is one that is described in the sex offense
registration statute; and,
b) 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
AB 322
Page 6
years from the date of the offense. �Penal Code Section
803(g)(1)(A)(B).]
7)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 Section 803(g)(1) and (h)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 2009 the DOJ
reported 8,698 forcible rapes in California. The number of
arrests reported for 2009 was 2,050. This is a statewide
arrest rate of 23.6%. Ten years ago in 1999 the arrest rate
was 30.6% (2,887 arrests ? 9,443 forcible rapes = 30.6%).
"As reported on the Attorney General's website: In 2009 there
were 174,579 violent crimes reported. Of these crimes, 8,698
or 5% were forcible rapes. Of the arrests for violent crime
reported in 2009, only 1.7% or 2050 were for forcible rape.
"Statewide the arrest rate for reported forcible rapes in 2009
was only 23.6% (2050 arrests divided by 8,698 rapes reported).
"A decade ago, when New York City began testing every rape kit,
their arrest rate went from 40% to around 70%. If California
made arrests on 70% of the reported forcible rapes, we would
have made an additional 4,038 arrests in 2009.
"As reported in the Los Angeles Times, there were over 10,000
unopened rape kits in Los Angeles County in 2008. �This bill]
seeks to shed light on the problem of untested rape kit
evidence from sexual assaults and help bring rapists to
justice.
"Under �this bill], law enforcement agencies will have 30 days
after collecting a rape kit to send it off to an approved lab
for testing. The testing has to be completed within six
months and a report filed with the Department of Justice. In
addition, AB 322 addresses the backlog of untested kits. The
AB 322
Page 7
bill requires the D.O.J. to establish a timeframe for
processing rape kits collected prior to July 1, 2012.
" 'It's unconscionable that thousands of rape kits remain
unopened and untested across California,' stated Portantino.
'Rape kits hold vital evidence that is crucial to a criminal
conviction, while the clock is ticking on bringing justice to
victims. It's frustrating to know that a rapist could be
walking free and a victim who suffered is further disrespected
because a vital piece of evidence went untested.'
"The Rape, Abuse and Incest Network reports that 1 in 6 women
and 1 in 33 men will be sexually assaulted in their lifetimes,
but only 6% of rapists will ever spend a day in jail. Rape
kits hold potentially crucial information from the crime
scene. DNA evidence from the kits is used to compare samples
from known felons in State and Federal databases. If you
don't process the evidence, you can't check it against the
database.
" 'I introduced this bill to protect the women and children in
our communities by making sure that our law enforcement
agencies are doing all they can to provide justice for the
victims of these horrible crimes,' explained Portantino. 'As
we've seen over and over again in news reports, evidence from
rape kits sits untested in police lockers throughout the
state. And, while police and sheriff's departments in Los
Angeles have made strides in processing some 10,000 backlogged
kits, this bill will ensure that in the future, rape kits are
opened and processed in a timely manner.' "
2)Statute of Limitations under Current Law for Sex Offenses :
Sex offenses have various statutes of limitations depending on
the specific facts and certain offenses. A criminal complaint
may be filed within one year of the date of a report to law
enforcement by any person who, while under the age of 18, was
the victim of rape, sodomy, child molestation, forcible oral
copulation, continuous sexual abuse of a child, sexual
penetration and fleeing the state with the intent to avoid
prosecution for a specified sex offense. However, the
existing statute of limitations must have expired, the crime
must have involved substantial sexual conduct and there must
be independent evidence to corroborate the victim's
allegations. If the victim is 21 years of age or older at the
time of the report, the independent evidence shall clearly and
AB 322
Page 8
convincingly corroborate the victim's allegations. �Penal
Code Section 803(f)(1) to (3).] A criminal complaint may also
be filed for the above-mentioned sex offenses any time before
the victim's 28th birthday when the offense is alleged to have
occurred when the victim was under the age of 18. Also, if
that time period has elapsed, any prosecution for a felony
registerable sex offense may commence 10 years after the date
of commission. �Penal Code Section 801.1(a) to (b).] DNA
evidence in specified sex offense cases may also toll the
statute of limitations. A criminal complaint may be filed
within one year of the time in which a suspect is conclusively
identified by DNA. �Penal Code Section 803(g)(1).]
3)Timeframe for Testing DNA : Existing law requires DNA
collected in sex assault cases to be tested in a certain
period of time in order to preserve the statute of limitations
for the crime. When an offense is committed before January 1,
2001 but tested by January 1, 2004 or if the offense is
committed after January 1, 2001 and tested within two years of
collection, the statute of limitation remains stayed and a
prosecution must commence within one year of conclusively
identifying a suspect. AB 383 (Lieu), of the 2009-10
Legislative Session, and AB 718 (Fuller), of the 2007-08
Legislative Session, both sought to remove the requirement
that a sample be tested in a specific period of time as the
DNA backlog was so significant DOJ and local law enforcement
are not able to test in time to preserve the statute of
limitations. According to a 2009 statement from the Los
Angeles County Sheriff's Department, "One of the biggest
problems facing the criminal justice system today is the
substantial backlog of unanalyzed DNA samples and biological
evidence from crime scenes, especially in sexual assault
cases. Too often, crime scene samples wait unanalyzed in law
enforcement or crime lab storage facilities. Timely analysis
of these samples and placement into DNA database can avert
tragic results. Currently, there are over 10,000 sexual
assault rape kits awaiting DNA processing in Los Angeles
County alone. A recent Los Angeles City Auditor report found
there are thousands of rape kits awaiting DNA processing in
LAPD evidence lockers. At the Los Angeles County Sheriff's
Department, we have nearly 5,000 rape kits awaiting DNA
processing in our evidence lockers."
4)Veto Messages of Previous Similar Legislation : AB 558
(Portantino) and AB 1017 (Portantino), both from the 2009-10
AB 322
Page 9
Legislative Session, were similar in their final form to this
legislation. The Governor stated:
"This bill is similar to AB 1017 (2009), which I also vetoed.
Unfortunately, while this measure is well intended, it
continues to ignore the precarious fiscal conditions of
California's crime laboratories. Indeed, as noted by the
California Crime Laboratory Review Task Force in its 2009
report, DNA, fingerprints, and firearms testing have been
identified as areas where requests often exceed staffing
capabilities. The Task force also noted that in order to
eliminate the backlog for DNA testing, an additional 282
analysts would have to be funded. Unfortunately, AB 558 will
not provide any additional funding or staffing for crime
laboratories and will instead divert resources away from
testing to sending reports to the Department of Justice. In
this time of fiscal crisis, I cannot condone this shift in
priorities."
5)Arguments in Opposition : According to the California Law
Enforcement Association of Records Supervisors and the
California State Sheriffs' Association , "We recognize and
share your intent to ensure that rape kits are analyzed and
processed in order to identify and convict offenders of these
heinous crimes. However, doing so by requiring law
enforcement agencies to provide statistics to DOJ would place
significant cost burdens on these agencies in terms of
resources and personnel and consequently, would inadvertently
hamper our abilities to process these kits. It is for these
reasons that the Governor vetoed AB 558, a similar version of
this bill last year.
"Local law enforcement agencies are grappling with significant
budget cuts over the last several years while trying to
maintain critical services. Adding an additional reporting
requirement would divert limited resources away from providing
current services.
"The additional costs associated with this new requirement would
be detrimental to the provision of critical services we
currently provide."
6)Prior Legislation :
a) AB 558 (Portantino), of the 2009-10 Legislative Session,
AB 322
Page 10
was vetoed. AB 558 would have required every local law
enforcement agency responsible for taking or processing
rape evidence annually report to the DOJ the total number
of rape kits received and tested during the preceding
calendar year, the total number of untested rape kits in
its possession as of January 1 of the reporting year, and
the total number of rape kits destroyed during the
preceding calendar year and the number of rape kits that
law enforcement has requested be tested that remain
untested, and in each case, the number of rape kits for
which the identity of the suspect is unknown and the number
of rape kits for which the identity is contested.
b) AB 1017 (Portantino), of the 2009-10 Legislative
Session, was vetoed. AB 1017 would have required that
beginning July 1, 2012, and annually thereafter until July
1, 2016, each local law enforcement agency responsible for
taking or collecting rape kit evidence shall annually
report to the DOJ various statistical information
pertaining to the testing and submission for DNA analysis
of rape kits, as specified.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Board of Directors, Junior League of Los Angeles
Californians Aware
State Public Affairs Committee of the Junior Leagues of
California
Opposition
California Law Enforcement Association of Records Supervisors
California State Sheriffs' Association
Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744