What is the effective date of Senate Bill (SB) 22?
SB 22 (2019-2020 Regular Session), which establishes new mandatory requirements for the submission and testing of sexual assault forensic evidence by law enforcement agencies and public crime labs, went into effect on January 1, 2020.
Does SB 22 only apply to sexual assault evidence (SAE) kits?
No. While parts of SB 22 specifically mention “rape kit” evidence, the law more broadly addresses the timely analysis of “sexual assault forensic evidence.” The intent of the law is to ensure, in sexual assault cases, that a probative DNA sample is processed and uploaded to the Combined DNA Index System (CODIS) in a timely manner. Thus, if a sexual assault kit is not collected in a case, representative and probative samples of any other types of sexual assault evidence (e.g., the victim’s clothing, bedding from the assault scene, etc.) must be sent to the crime lab for timely processing to meet the sample processing and DNA profile upload requirements of SB 22.
Do the processing mandates specified under Penal Code section 680, subdivision (c), apply only to untested sexual assault forensic evidence that is booked into evidence by a law enforcement agency (LEA) or received by a crime lab on or after SB 22’s effective date of January 1, 2020?
No. The time frames for submitting, processing, and uploading sexual assault evidence under Penal Code section 680 became mandates on January 1, 2020, and these mandates apply to sexual assault forensic evidence that was received on or after January 1, 2016.
Regardless of the date of the alleged offense, if an LEA receives sexual assault forensic evidence on or after January 1, 2016, and none of the case evidence has ever been submitted to a crime lab for analysis, SB 22 requires the LEA to submit sexual assault evidence from the case to a crime lab within 20 days of booking the evidence. The crime lab is required to process the evidence and upload a qualifying DNA profile to CODIS within 120 days of receipt of the evidence by the crime lab.
SB 22 imposes mandates for sexual assault forensic evidence received by an LEA or crime lab on or after January 1, 2016. How do these mandates apply to untested sexual assault forensic evidence that, as of January 1, 2020, had been booked at an LEA for more than 20 days or had not been processed by a crime lab within 120 days of receipt by the crime lab? How can LEAs and crime labs that have already exceeded the mandated timelines comply with these new requirements?
By default, untested evidence that falls within the mandates of SB 22, but already has been in inventory longer than the time allotted to the LEA or crime lab, became non-compliant with the mandates of SB 22 as of January 1, 2020. LEAs and crime labs should process this evidence as expeditiously as possible.
A crime lab has 120 days to process sexual assault evidence and upload qualifying profiles to CODIS or 30 days to transmit the evidence to another lab. How much time does the second lab have to process the evidence?
The first lab’s 120-day deadline applies even if the evidence is transferred to a second lab. The first lab has 30 days to transmit the evidence to a second lab, and must upload a qualifying DNA profile to CODIS within 30 days after test results are obtained. (Pen. Code, § 680, subd. (c)(2)(B).) Therefore, if the first lab takes 30 days to transmit the evidence to a second lab, the second lab should take no longer than 60 days to process the evidence in order to ensure that the first lab has 30 days to upload a qualifying probative DNA profile into CODIS.
For cases in which the identity of the suspect is not in question or cases that have already been adjudicated or otherwise closed, do LEAs have to submit to the crime lab untested sexual assault forensic evidence that the LEA received on or after January 1, 2016?
Yes. SB 22 applies to cases with sexual assault forensic evidence that has never been tested. Cases that have already been solved are not excluded. If none of the sexual assault forensic evidence from a sexual assault case has ever been tested, the evidence must still be submitted to a crime lab and a qualifying DNA profile, if found, must be uploaded to CODIS. Even if the DNA evidence is not necessary to identify the suspect or to adjudicate or close the case for which it was collected, it may link the suspect to another case where the offender has not yet been identified.
Is a rapid turnaround DNA program compliant if sexual assault forensic evidence samples are sent directly from the medical facility to the crime lab on a weekly basis?
Under Penal Code section 680, subdivision (c)(1)(B), where a rapid turnaround DNA program is in place, forensic evidence collected from the victim of a sexual assault must be submitted 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. A rapid turnaround DNA program that transmits sexual assault forensic evidence directly from the medical facility to a crime lab more than five calendar days after the evidence was collected from the victim would not meet this requirement.
If, under a rapid turnaround DNA program, selected samples from a victim sexual assault kit are sent directly from a medical facility to a crime lab, is the LEA’s portion of the kit considered untested under SB 22?
Under Penal Code section 680, subdivision (c)(3), a crime lab is not required to test all items of forensic evidence obtained in a sexual assault forensic evidence examination, and if representative samples of the evidence are processed by the crime lab in an effort to detect the foreign DNA of the perpetrator, the crime lab would be considered to be in compliance with the requirements of SB 22.
Do the requirements of SB 22 apply to VAWA (A.K.A. “restricted”) kits/evidence?
Yes. The Violence Against Women Act (VAWA) affords sexual assault victims the right to obtain a medical examination and to have forensic evidence collected without being required to immediately, or ever, report the sexual assault to law enforcement. However, VAWA evidence that an LEA has booked into evidence or that has been submitted to a crime lab is not exempt from the processing mandates set by SB 22. Even if a victim has chosen to remain anonymous and/or does not wish to cooperate with an investigation, sexual assault forensic evidence from their case that is received by an LEA or crime lab on or after January 1, 2016, must be tested and any qualifying DNA profiles uploaded to CODIS.
If sexual assault forensic evidence has been screened by a crime lab, is the evidence considered tested under SB 22?
This depends on the type of screening that was performed. Penal Code section 680, subdivision (c)(2), requires crime labs to “[p]rocess sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS” or transmit the evidence to another lab “for processing of the evidence for the presence of DNA.”
Crime labs are considered to be in compliance with the testing mandate when they have processed representative samples of sexual assault evidence “in an effort to detect the foreign DNA of the perpetrator.” (Pen. Code, § 680, subd. (c)(3).)
Sexual assault evidence that has only been screened for biological fluids (e.g., semen or seminal fluid), and has not been processed in an effort to detect the perpetrator’s DNA, would not be considered tested. However, in the case of a female victim and male perpetrator, sexual assault forensic evidence that has screened negative for the presence of male DNA would be considered tested.
How long do LEAs have to retain sexual assault evidence?
For unsolved cases, LEAs must retain sexual assault evidence for at least 20 years or until the victim’s 40th birthday if the victim was under the age of 18 on the date of the alleged offense. (Pen. Code, § 680, subd. (f)(2).)
For solved cases, sexual assault evidence must generally be retained as long as any person remains incarcerated in connection with the case. (Pen. Code, § 1417.9, subds. (a), (b).)
What is SAFE-T?
SAFE-T is a database created by the California Department of Justice, Bureau of Forensic Services to track the status and disposition of victim sexual assault kits collected statewide and in the possession of California’s law enforcement agencies (LEA) and crime labs. The SAFE-T database tracks only victim sexual assault kits. It does not track sexual assault evidence in cases where a victim kit was not collected or in cases where only other types of sexual assault evidence (e.g., suspect kits, items of clothing, bedding, etc.) were collected.
Who has access to SAFE-T?
Access to SAFE-T is strictly limited to designated users from LEAs, public crime labs, and district attorneys’ offices.
What kind of information is in SAFE-T?
The SAFE-T database tracks, among other things, information related to the status, location, and processing milestones of victim sexual assault kits, including: whether evidence samples from the kit were submitted to a crime lab for analysis; if a sample from the kit yielded a potentially probative DNA profile; the reason kit samples were not submitted to a crime lab for processing, if applicable; and the reason a crime lab has not completed analysis of kit samples within 120 days of submission to the crime lab. It does not include actual DNA profiles, identifying information about the victim or suspect, or any information that would impair a pending criminal investigation.
What sexual assault kits are required to be entered into SAFE-T?
Kits collected from victims of suspected sexual assault (known as “victim kits”) must be entered into SAFE-T; this includes coroner/homicide kits collected in cases where sexual assault is suspected. SAFE-T does not track suspect kits or coroner/homicide kits collected in cases where sexual assault is not suspected.
Are the records in the SAFE-T database available to the public?
No. The California Department of Justice summarizes aggregate data from SAFE-T in an annual report to the Legislature. The public may access the report on the California Department of Justice’s website at https://oag.ca.gov/publications. (Pen. Code, § 680.3, subd. (e).) Apart from this report and any disclosures that may be required by Brady v. Maryland (1963) 373 U.S. 83, the contents of the SAFE-T database are confidential. (Pen. Code, § 680.3, subd. (f).)
How can a victim find out the status of their sexual assault kit?
To learn the location and status of their kit, a sexual assault victim may contact the California Department of Justice’s Victims’ Services Unit (VSU) by phone at (877) 433-9069 or by email at email@example.com. VSU requires a police report number or kit number to conduct this search. VSU will only indicate the current general location and status of the kit as recorded in SAFE-T (for example, the kit was received by law enforcement, sent to a crime lab, or received by the crime lab, or DNA analysis is in progress or DNA analysis is completed) and the name and contact information of the assigned law enforcement agency’s investigator, if that information is available. If VSU is unable to locate the kit in SAFE-T, or if the victim would like details about the case or testing outcomes, the victim must contact the investigating law enforcement agency for additional information.