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AB 1017 Would Strengthen Laws Regarding Rape Kit Testing


In September of 2008 it was disclosed that the City of Los Angeles had not opened or tested over 7,000 rape kits that were collected as evidence. Of these kits, 217 had been held beyond the 10-year statute of limitations that applies to the crime of rape.

A report published by the independent group, Human Rights Watch, indicates that 47 other police agencies in Los Angeles County are experiencing the same problems in testing rape kits. While many of the agencies are disputing the numbers compiled by Human Rights Watch, it is clear that many rape kits are being tested years late or never tested at all.

A rape kit is the physical evidence, often including DNA, that is collected after a sexual assault. Timely testing of rape kits is essential in identifying and convicting perpetrators who are frequently repeat offenders.

A representative of women’s issues has been quoted as saying, “When a rape is committed, the victim’s body is the crime scene. They consent to its search in the same way that a person who has suffered a property crime consents to a search of their home, though it’s themselves these victims are opening to inspection.” To treat evidence gathered at that excruciating moment in their lives by not testing it, she said, “betrays the victim’s faith in the criminal justice system.”

The Los Angeles County Sheriff’s Department has reported that they have more than 800 rape kits that have gone untested in the County. Many of these kits have also been held over the ten year statute of limitations for rape convictions.

Unexamined evidence kits hold potentially crucial information and evidence of criminal activity. Through a complex scientific process, DNA analysts can extract a person’s genetic code from the collected samples and compare it to those of known felons that are kept in federal and state databases.

When the DNA sample collected at the crime scene or from a victim’s body matches a DNA profile of someone in the database, it can offer prosecutors nearly irrefutable proof of someone’s guilt. The evidence can also be used to confirm that someone has not been falsely accused of a crime.

A rape kits costs approximately $1,000 to process.

The Los Angeles experience is not unique. The New York City Police Department in 1996 had over 17,000 untested rape kits in its possession. At this time they only had a capacity to test 100 to 150 rape kits a year while they were getting about 1600 new kits each year.

New York City made a commitment to test all unopened kits in their possession and contracted with three private laboratories to do the testing. It took two years and millions of dollars to test every kit. NYC invested in its own laboratories and now tests all rape kits in house.

New York City after testing theses rape kits found more investigative leads to criminal suspects than they imagined. One kit that was tested even led to the exoneration of a man convicted of rape.

New York City has now changed its policy of allowing detective discretion in determining which kits are to be tested and now requires that all rape kits must be processed and tested.

Testing in New York City is performed in the Medical Examiner’s Office and can be done with a two week turnaround after the kit is initially taken.

The Los Angeles Police Department has recently reported that the number of untested kits now stands at 4,423. Los Angeles has pledged to clear the backlog by the summer of 2010.

The Los Angeles County Sheriff’s Department has also pledged to test all unopened rape kits.

While the Los Angeles City and County backlogs have been made public, other areas though out the state do not know the status of rape kits in their communities.

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 its possession that have not tested or analyzed. The report shall cover the number of kits by year and shall cover the past five years.

Testing All Rape Kits
While New York City has adopted a policy of testing all rape kits, most California law enforcement agencies have a policy of testing only kits they believe are needed. This has created a system that fails victims of rape and sexual assault.

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AB 1017 will require all local law enforcement agencies to test every rape kit.

Of 4,718 untested rape kits in the City of Los Angeles, 403 were “stranger rapes” in which DNA testing could have netted a solid suspect. The County of Los Angeles recently discovered 815 untested rape kits of “stranger rape.”

Many rape kits are rejected for testing because the rape is classified by law enforcement as a “he said – she said” situation. This results in a situation where a crime is often ignored because the victim knows the attacker. Making sure that these rape kits are tested will allow law enforcement to be able to establish a pattern of criminal behavior in individuals who rape acquaintances.

In 1999, when New York City tested approximately 17,800 backlogged rape kits, the results were amazing. There were 2,000 “hits” – or DNA matches – leading to the solving of 154 cold rape cases, including the heinous attacks on two teenagers by a serial rapist.

Notification of Rape Victims Regarding Testing
Existing law contained in the Sexual Assault Victims DNA Bill of Rights requires a law enforcement agency to notify, either orally or in writing, a victim of a specified sex crime where the identity of the perpetrator is in issue, if the agency elects not to analyze DNA evidence within the time limits established by statute.

As written, existing law is creating a situation where few victims are being notified that their rape kits are not going to be tested. Many local law enforcement agencies are choosing to delay making a decision whether or not to test kits. Since they are in effect putting off the decision on electing to test a kit, they are not in violation of state law for failing to notify the victim.

Allowing local law enforcement to “elect” to test a kit allows them to do nothing and does not force them to notify the victim of this delay. When a decision is put off, many times for periods in excess of ten years, victims are denied an opportunity to know the status of the evidence in their assault.

AB 1017 removes the word “elects” in current law and instead provides that if the kit is not tested within six months of being obtained, the law enforcement agency must inform the victim either orally or in writing of this fact.

Reporting Sexual Assault Crime Statistics to the Department of Justice
Existing law requires local law enforcement agencies to report criminal statistics to the DOJ.

The Crimes and Clearances database in the DOJ provides statistical data on the offenses of criminal homicide, forcible rape, robbery, assault, burglary, larceny-theft, and motor vehicle theft. The data include the number of actual offenses and the number of clearances.

Supplemental data are collected on the nature of crime and the value of property stolen and recovered. Data are published in Crime in California and the Criminal Justice Profile series. The data are also forwarded to the FBI's Uniform Crime Reporting (UCR) program for publication in Crime in the United States. The Crimes database contains information from 1952 to the present.

The database currently provides information on forcible rape, and sex offenses categorized as either “lewd or lascivious” or as “other.”

Forcible rape in the DOJ “Criminal Justice Glossary is defined as: FORCIBLE RAPE: the carnal knowledge of a female forcibly and against her will. Assaults or attempts to commit rape by force or threat of force are included (UCR definition).

Other than forcible rape, we do not have statistics or a clear picture of what sexual crimes are being committed in California.


AB 1017 will require local law enforcement agencies in California to annually report to the DOJ the total number of sexual assault crimes reported in that jurisdiction if reports of that crime would result in the perpetrator being forced to register as a sex offender.

By knowing the scope and extent of sexual assaults in California, we can take necessary steps to prevent or reduce these crimes in our communities.

Anthony Portantino

Assemblymember Anthony Portantino was elected to serve the 44th Assembly District in November, 2006. Anthony currently serves as the Chair of the Assembly’s Committee on Higher Education and is a member of the Transportation, Government Organization and Public Safety Standing Committees. He is also a member of the Assembly Select Committees on the Preservation of the California’s Entertainment Industry, Foster Care, and Community Colleges.

Reprinted with permission from the California Progress Report.