BILL NUMBER: AB 322 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 26, 2011
INTRODUCED BY Assembly Member Portantino
FEBRUARY 9, 2011
An act to add and repeal Section 680.1 of the Penal Code, relating
to forensic evidence.
LEGISLATIVE COUNSEL'S DIGEST
AB 322, as amended, Portantino. Forensic evidence: rape kits.
Existing law, the Sexual Assault Victims' DNA Bill of Rights,
authorizes a law enforcement agency investigating certain felony sex
offenses, upon the request of the victim, and subject to the
commitment of resources, to inform the victim whether or not a DNA
profile was obtained from the testing of the rape kit evidence or
other crime scene evidence from the case, whether or not that
information has been entered into the Department of Justice Data Bank
of case evidence, and whether or not there is a match between the
DNA profile developed from the rape kit evidence or other crime scene
evidence and a DNA profile contained in the Department of Justice
Convicted Offender DNA Data Base, as specified. Existing law also
requires that the victim be given written notification by the law
enforcement agency if the law enforcement agency elects not to
perform DNA testing of the rape kit evidence or other crime scene
evidence, or intends to destroy or dispose of the rape kit evidence
or other crime scene evidence prior to the expiration of the statute
of limitations, as specified.
This bill would require local law enforcement agencies responsible
for taking or collecting rape kit evidence to annually report to the
Department of Justice statistical information pertaining to the
testing and submission for DNA analysis of rape kits, as specified.
The initial report would be due by July 1, 2013. The reports received
by the department would be subject to inspection under the
California Public Records Act.
The bill would require law enforcement agencies that collect, on
or after July 1, 2012, a rape kit in connection with an investigation
into an allegation of the crime of rape, to submit that rape kit for
testing within 30 business days of collection to a
Department of Justice forensic laboratory or a
forensic laboratory approved and designated by the department
. The bill would require the department to establish a
timeframe for processing rape kits collected prior to July 1, 2012.
The bill would require all rape kits submitted to a
department forensic laboratory or a laboratory
approved and designated by the department on or after July
1, 2012, to be analyzed within 6 months after receipt by the
laboratory if sufficient staffing and resources are available. The
bill would require that by January 1, 2014, the department shall
submit to the Governor and both houses of the Legislature a plan for
collecting and testing rape kits, including recommendations of any
changes to the timeline for analysis.
The bill would require each California law enforcement agency, by
July 1, 2013, to provide written notice to the department of the
number of rape kits in the custody of the law enforcement agency that
have not been previously submitted to a laboratory for analysis.
The bill would require that by January 1, 2014, appropriate
arrangements be made between the law enforcement agency and the
department, or a laboratory approved and designated by the department
to ensure that all rape kits that were collected prior to July 1,
2012, have been tested.
The bill would provide that its provisions would become
inoperative on July 1, 2016 2017 , and
would be repealed on January 1, 2017 2018
.
By imposing additional reporting duties on local law enforcement
agencies, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 680.1 is added to the Penal Code, to read:
680.1. (a) The Legislature finds and declares the following:
(1) 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.
(2) 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 percent of rapists will ever spend a day in
jail.
(3) Using statistics as reported in 2008 to the Department of
Justice 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 percent, the California county average is only
29.7 percent.
(4) Many counties in California have reported arrest rates for the
crime of forcible rape that are as low as 0 percent. There are many
counties that record arrests for less than 18 percent of the forcible
rapes that occur in their county.
(5) 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
percent in 2006 to 29.7 percent in 2008. Testing of all rape kits in
California will increase the arrest rate for the crime of rape.
(b) Each local law enforcement agency responsible for taking or
collecting rape kit evidence shall collect the following information
for rape kits collected on or after January 1, 2012:
(1) 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.
(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.
(3) 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.
(4) 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.
(5) 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.
(c) Each local law enforcement agency responsible for taking or
collecting rape kit evidence shall report, by July 1 of each year,
the information collected pursuant to this section during the
preceding year to the Department of Justice. The initial report to
the department pursuant to this subdivision shall be made by July 1,
2013.
(d) The reports received by the department pursuant to subdivision
(b) are subject to inspection under the California Public Records
Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code).
(e) Law enforcement agencies that collect, on or after July 1,
2012, a rape kit 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
Department of Justice forensic laboratory or a
forensic laboratory approved and designated by the department
.
(f) Rape kits collected by a law enforcement agency prior to July
1, 2012, shall be submitted to a department
forensic laboratory or a laboratory approved and designated
by the department pursuant to this section . The department
shall establish a reasonable timeframe mandating when local law
enforcement agencies shall submit these kits in order to comply with
the requirement in subdivision (i) that all of those rape kits be
tested by January 1, 2014. Nothing in law shall prohibit or prevent
local law enforcement agencies from submitting rape kits for testing
sooner than deadlines established by the department.
(g) (1) All rape kits submitted to a department
forensic laboratory or a laboratory approved and designated
by the department on or after July 1, 2012, shall be
analyzed within six months after receipt by the laboratory if
sufficient staffing and resources are available.
(2) By January 1, 2014, the department shall submit to the
Governor and both houses of the Legislature a plan for collecting and
testing rape kits submitted pursuant to this section. The plan shall
review the six-month timeline in paragraph (1), 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.
(3) The plan submitted to the Legislature pursuant to paragraph
(2) shall be submitted pursuant to Section 9795 of the Government
Code.
(h) By July 1, 2013, each California law enforcement agency shall
provide written notice to the department, in a form and manner
prescribed by the department, 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.
(i) By January 1, 2014, appropriate arrangements shall be made
between the law enforcement agency and the department , or a
laboratory approved and designated by the department, to
ensure that all rape kits that were collected prior to July 1, 2012,
have been tested.
(j) Should the department determine it is necessary to outsource
the forensic testing of any rape kits submitted in accordance with
this section, the department may designate other public or private
laboratories that meet applicable testing criteria, quality control,
and appropriate methods of evidence control and preservation to the
satisfaction of the department.
(k)
(j) 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 under
this section.
(l)
(k) The department shall promulgate rules that
prescribe the procedures for the operation of this section including
such emergency regulations as necessary.
(m)
(l) This section shall remain operative only until July
1, 2017, and shall be repealed on January 1, 2018, unless a later
enacted statute, that is enacted before January 1, 2018, deletes or
extends that date.
SEC. 2. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.