Bill Text: CA AB358 | 2019-2020 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sexual assault forensic examination kits: databases.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2020-02-03 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB358 Detail]

Download: California-2019-AB358-Amended.html

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Amended  IN  Assembly  March 26, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 358

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Introduced by Assembly Member Low

February 04, 2019

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An act to amend Section 13823.5 of 680.3 of, and to add Section 680.5 to, the Penal Code, relating to sexual assault.

LEGISLATIVE COUNSEL'S DIGEST

AB 358, as amended, Low. Sexual assault: medical examination. assault forensic examination kits: databases.

Existing law makes the Department of Justice, through its DNA Laboratory, responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program. Existing law requires a law enforcement agency that has investigated a case involving the collection of sexual assault kit evidence, within 120 days of collection, to create an information profile for the kit on the Department of Justice’s Sexual Assault Forensic Evidence Tracking (SAFE-T) database and report specified information, including if biological samples from the kit were submitted to a DNA laboratory for analysis.

This bill would require a law enforcement agency that has investigated a case involving the collection of sexual assault kit evidence to create an information profile for the kit only if one does not currently exist. The bill would require each city, county, city and county, or state laboratory that participates in the California Combined DNA Index System (CODIS), upon notification by the department that a CODIS hit has occurred for forensic evidence collected from a sexual assault kit, to enter into the CODIS Hit Outcome Project (CHOP) database the information required by the department and to report to the department, as required by the department, the status and outcome of those investigative leads. By expanding the duties of local agencies, this bill would impose a state-mandated local program.

The bill, on or before July 1, 2024, would also require the department to fully integrate the SAFE-T and CHOP databases to modernize sexual forensic evidence supply chain tracking, as specified. The bill would require the department to annually report to the Governor and the Legislature summarizing data on case outcomes.

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.

Existing law requires the Office of Emergency Services to establish a protocol for the examination and treatment of victims of sexual assault and attempted sexual assault, and to adopt a standard and a complete form or forms for the recording of medical and physical evidence data disclosed by a victim of sexual assault or attempted sexual assault. Existing law requires a qualified health care professional who conducts an examination for evidence of a sexual assault or an attempted sexual assault to use the standard form or forms. Existing law defines “qualified health care professional” for these purposes as including a physician and surgeon and a nurse working in consultation with a physician and surgeon conducting specified examinations or treatment in a general acute care hospital or in a physician and surgeon’s office.

This bill would expand the definition of “qualified health care professional” for these purposes to include a nurse practitioner and a physician assistant, as specified.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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Bill Text

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

SECTION 1.

 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 database, if one does not already exist, 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) 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. 2.

 Section 680.5 is added to the Penal Code, to read:

680.5.

 (a) (1) Each city, county, city and county, or state laboratory that participates in CODIS shall, upon notification by the department that a CODIS hit has occurred for forensic evidence collected from a sexual assault kit, enter into the CHOP database the information required by the department.

(2) On a schedule set by the department and pursuant to instructions published by the department, each law enforcement agency in California that is responsible for the investigation or prosecution of a sexual assault case that involves a DNA match to a California offender shall report to the department, through the CHOP database, the status and outcome of that investigative lead.

(b) (1) Information collected by the department pursuant to this section is investigatory in nature and is official information, subject to the disclosure protections of Sections 1040 and 1041 of the Evidence Code.

(2) This section does not require the department or local law enforcement to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.

(c) On or before July 1, 2024, the Department of Justice shall fully integrate the SAFE-T database and the CHOP database to modernize sexual forensic evidence supply chain tracking and to accomplish all of the following goals:

(1) Enable qualified health care professionals to create information profiles for sexual assault kit evidence they collect from victims and input information relevant to the examination and treatment of those victims, including demographic information and facts of the assault relevant in determining the probability of finding a probative DNA sample, on an electronic sexual assault mandated form.

(2) Require electronic sexual assault mandated forms to generate a unique identifier linking the police report number, exam number, kit number, and specimen number for the purposes of tracking the sexual assault kit.

(3) Establish an online, public-facing portal for victims to track the status of their sexual assault kit via time stamps to indicate the date of assault, date of exam, date the kit was received by the crime laboratory, date the kit analysis was completed, and, if applicable, date probative sample was uploaded to CODIS. This portal shall not have access to 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.

(4) Establish an internal portal for qualified health care professionals, law enforcement agencies, and laboratories to track the sexual assault kit and input data, including time stamp data, kit analysis data, and CODIS hit data.

(5) Database contents shall be confidential and the victim information in the database shall meet the confidentiality requirements of subdivision (f) of Section 680.3.

(d) For purposes of this title, the following definitions shall apply:

(1) “CODIS” means the California Combined DNA Index System.

(2) “CHOP database” means the CODIS Hit Outcome Project database, managed and administered by the Department of Justice.

(3) “Department” means the Department of Justice.

(4) “SAFE-T database” means the Sexual Assault Forensic Evidence Tracking database managed and administered by the Department of Justice.

(e) The Department of Justice shall annually report to the Governor and the Legislature, in compliance with Section 9795 of the Government Code, summarizing data on case outcomes. The report shall not reference individual victims, suspects, investigations, or prosecutions. The report shall be made public by the Department of Justice.

SEC. 3.

 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.

SECTION 1.Section 13823.5 of the Penal Code is amended to read:

13823.5.

(a)The Office of Emergency Services, with the assistance of the advisory committee established pursuant to Section 13836, shall establish a protocol for the examination and treatment of victims of sexual assault and attempted sexual assault, including child molestation, and the collection and preservation of evidence therefrom. The protocol shall contain recommended methods for meeting the standards specified in Section 13823.11.

(b)(1)In addition to the protocol, the Office of Emergency Services shall develop informational guidelines, containing general reference information on evidence collection and examination of victims of, and psychological and medical treatment for victims of, sexual assault and attempted sexual assault, including child molestation.

(2)In developing the protocol and the informational guidelines, the Office of Emergency Services and the advisory committee shall seek the assistance and guidance of organizations assisting victims of sexual assault; qualified health care professionals, criminalists, and administrators who are familiar with emergency room procedures; victims of sexual assault; and law enforcement officials.

(c)(1)The Office of Emergency Services, in cooperation with the State Department of Public Health and the Department of Justice, shall adopt a standard and a complete form or forms for the recording of medical and physical evidence data disclosed by a victim of sexual assault or attempted sexual assault, including child molestation.

(2)Each qualified health care professional who conducts an examination for evidence of a sexual assault or an attempted sexual assault, including child molestation, shall use the standard form or forms adopted pursuant to this section, and shall make those observations and perform those tests as may be required for recording of the data required by the form. The forms shall be subject to the same principles of confidentiality applicable to other medical records.

(3)The Office of Emergency Services shall make copies of the standard form or forms available to every public or private general acute care hospital, as requested.

(4)The standard form shall be used to satisfy the reporting requirements specified in Sections 11160 and 11161 in cases of sexual assault, and may be used in lieu of the form specified in Section 11168 for reports of child abuse.

(d)The Office of Emergency Services shall distribute copies of the protocol and the informational guidelines to every general acute care hospital, law enforcement agency, and prosecutor’s office in the state.

(e)As used in this chapter, “qualified health care professional” means a physician and surgeon currently licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, or a nurse currently licensed pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code and working in consultation with a physician and surgeon who conducts examinations or provides treatment as described in Section 13823.9 in a general acute care hospital or in a physician and surgeon’s office, a nurse practitioner licensed pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code, or a physician assistant licensed pursuant to Chapter 7.7 (commencing with Section 3500) of Division 2 of the Business and Professions Code.