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SB-22 Rape kits: testing.(2019-2020)

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Date Published: 12/03/2018 09:00 PM
SB22:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 22


Introduced by Senator Leyva
(Principal coauthor: Senator Portantino)
(Coauthors: Senators Beall, Jackson, Skinner, and Stone)
(Coauthor: Assembly Member Chiu)

December 03, 2018


An act to amend Sections 680, 680.3, and 13823.14 of the Penal Code, relating to evidence, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


SB 22, as introduced, Leyva. Rape kits: testing.
Existing law declares that timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. Existing law finds and declares that law enforcement agencies should either submit sexual assault forensic evidence received on or after January 1, 2016, to a crime lab within 20 days after it is booked into evidence or to ensure that a rapid turnaround DNA program is in place, as specified. Existing law also finds and declares that a crime lab that receives sexual assault forensic evidence on or after January 1, 2016, should either process the evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System, as specified, or transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after receiving the evidence, for processing of the evidence for the presence of DNA.
This bill would instead require a law enforcement agency to either submit sexual assault forensic evidence to a crime lab or ensure that a rapid turnaround DNA program is in place, as specified, and require a crime lab to either process the evidence or transmit the evidence to another crime lab for processing, as specified. Because this bill would impose a higher level of service on local law enforcement agencies in processing that evidence, it would impose a state-mandated local program. The bill would appropriate $2,000,000 from the General Fund to the Department of Justice to allocate to local law enforcement agencies to assist them with complying with that requirement.
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 the statutory provisions noted above.
Vote: 2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The sum of two million dollars ($2,000,000) is hereby appropriated from the General Fund to the Department of Justice to allocate to local law enforcement agencies to assist them with complying with the amendments to Section 680 of the Penal Code made by this act.

SEC. 2.

 Section 680 of the Penal Code, as amended by Section 75 of Chapter 423 of the Statutes of 2018, is amended to read:

680.
 (a) This section shall be known as and may be cited as the “Sexual Assault Victims’ DNA Bill of Rights.”
(b) The Legislature finds and declares all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.
(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.
(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.
(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.
(5) The growth of the Department of Justice’s Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.
(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.

(7)

(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following should shall occur:

(A)

(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 262, 286, 287, or 289 or former Section 288a occurred should shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:

(i)

(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.

(ii)

(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.

(B)

(2) The crime lab should shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.

(i)

(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.

(ii)

(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.

(C)

(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.

(D)

(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.

(E)

(5) For purposes of this section, a “rapid turnaround DNA program” is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.

(8)

(6) For the purpose of this section, “law enforcement” means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.

(c)

(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 262, 286, 287, or 289 or of former Section 288a shall 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 shall respond to the victim’s request with either an oral or written communication, or by email, if an email 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.
(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:
(A) 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.
(B) 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 Department of Justice Data Bank of case evidence.
(C) 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 Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.
(3) This subdivision 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 Department of Justice provides this information to law enforcement agencies.

(d)

(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 262, 286, 287, or 289 or former Section 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.

(e)

(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 262, 286, 287, or 289 or former Section 288a shall be given written notification by the law enforcement agency of that intention.
(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victim’s 40th birthday.

(f)

(g) Written notification under subdivision (d) or (e) (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.

(g)

(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victim’s choosing, to act as a recipient of the above information required to be provided by this section.

(h)

(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (c) (d) do so in a timely manner and, upon request of the victim or the victim’s designee, advise 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 email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.

(i)

(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.

(j)

(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agency’s failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (d) or (e). (e) or (f).

SEC. 3.

 Section 680.3 of the Penal Code is amended to read:

680.3.
 (a) Each law enforcement agency that has investigated a case involving the collection of sexual assault kit evidence shall, within 120 days of collection, create an information profile for the kit on the Department of Justice’s SAFE-T database and report the following:
(1) If biological evidence samples from the kit were submitted to a DNA laboratory for analysis.
(2) If the kit generated a probative DNA profile.
(3) If evidence was not submitted to a DNA laboratory for processing, the reason or reasons for not submitting evidence from the kit to a DNA laboratory for processing.
(b) After 120 days following submission of rape kit biological evidence for processing, if a public DNA laboratory has not conducted DNA testing, that laboratory shall provide the reasons for the status in the appropriate SAFE-T data field. If the investigating law enforcement agency has contracted with a private laboratory to conduct DNA testing on rape kit evidence, the submitting law enforcement agency shall provide the 120-day update in SAFE-T. The process described in this subdivision shall take place every 120 days until DNA testing occurs, except as provided in subdivision (c).
(c) Upon expiration of a sexual assault case’s statute of limitations, or if a law enforcement agency elects not to analyze the DNA or intends to destroy or dispose of the crime scene evidence pursuant to subdivision (f) (g) of Section 680, the investigating law enforcement agency shall state in writing the reason the kit collected as part of that case’s investigation was not analyzed. This written statement relieves the investigating law enforcement agency or public laboratory of any further duty to report information related to that kit pursuant to this section.
(d) The SAFE-T database shall not contain any identifying information about a victim or a suspect, shall not contain any DNA profiles, and shall not contain any information that would impair a pending criminal investigation.
(e) On an annual basis, the Department of Justice shall file a report to the Legislature in compliance with Section 9795 of the Government Code summarizing data entered into the SAFE-T database during that year. The report shall not reference individual victims, suspects, investigations, or prosecutions. The report shall be made public by the department.
(f) Except as provided in subdivision (e), in order to protect the confidentiality of the SAFE-T database information, SAFE-T database contents shall be confidential, and a participating law enforcement agency or laboratory shall not be compelled in a criminal or civil proceeding, except as required by Brady v. Maryland (1963) 373 U.S. 83, to provide any SAFE-T database contents to a person or party seeking those records or information.
(g) The requirements of this section shall only apply to sexual assault evidence kit evidence collected on or after January 1, 2018.

SEC. 4.

 Section 13823.14 of the Penal Code is amended to read:

13823.14.
 (a) The Department of Justice’s Bureau of Forensic Services, the California Association of Crime Laboratory Directors, and the California Association of Criminalists shall provide leadership and work collaboratively with public crime laboratories to develop a standardized sexual assault forensic medical evidence kit for use by all California jurisdictions. The packaging and appearance of the kit may vary, but the kit shall contain a minimum number of basic components and also clearly permit swabs or representative evidence samples to be earmarked for a rapid turnaround DNA program, as defined in subparagraph (E) of paragraph (7) of subdivision (b) paragraph (5) of subdivision (c) of Section 680, when applicable.
(b) The collaboration to establish the basic components for a standardized sexual assault forensic medical evidence kit should be completed by January 30, 2018, and shall be conducted in conjunction with the California Clinical Forensic Medical Training Center, authorized by Section 13823.93, that is responsible for the development of sexual assault forensic medical examination procedures and sexual assault standardized forensic medical report forms and for providing training programs.
(c) On or before May 30, 2019, the California Clinical Forensic Medical Training Center, in coordination with the Department of Justice’s Bureau of Forensic Services, the California Association of Crime Laboratory Directors, and the California Association of Criminalists, shall issue guidelines pertaining to the use of the standardized sexual assault kit components throughout the state.
(d) Every local and state agency shall remain responsible for its own costs in purchasing a standardized sexual assault forensic medical evidence kit.

SEC. 5.

  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.