California pushes rape-kit testing bills to end backlog


Now lawmakers are again pushing bills to make it happen — starting with a proposal to require law enforcement to track and report the number of rape kits they collect and test, similar to what the San Francisco Police Commission forced the city’s Police Department to begin doing last year.

“There are a lot of states that have been far more progressive than California on this,” said Ilse Knecht, director of advocacy and policy at the Joyful Hearth Foundation, a national victims-rights group and proponent of clearing the national rape-kit backlog. “We think it’s time for California to step up and join the states that are doing something to address this issue.”

The U.S. Department of Justice estimated in 2014 that as many as 400,000 rape kits sat untested in police evidence rooms. Some law enforcement agencies argue there are valid reasons for not testing kits — such as when the victim declines to pursue charges or the suspect’s identity is known. But departments that test their backlog of rape kits increasingly discover DNA from a known suspect that links to multiple cases.

Kentucky is an example of one state pushing reforms. In 2015, lawmakers there ordered an audit of untested rape kits sitting in evidence rooms. The audit showed the state had more than 3,000 untested rape kits, and helped Kentucky apply for grant funding to test the evidence. This month, the state brought new charges against a convicted rapist after police discovered his DNA in an old rape kit. That was Kentucky’s first indictment from backlogged sexual assault evidence. Similar charges have been brought against suspects in states across the country, including California.

The Chronicle broke the story of a case last year in which Alameda County prosecutors filed charges against a career criminal accused of sexually assaulting two teens in Berkeley. In that case, a 15- and 19-year-old reported that a stranger abducted them at gunpoint in 2008 near Berkeley High School, raped one and sexually assaulted the other.

The Berkeley Police Department could not explain why it took six years to send the evidence to a laboratory to see if DNA in it could help identify the unknown assailant. The department tested the kit only after District Attorney Nancy O’Malley began a county-wide audit of untested rape kits.

A criminalist with the state Department of Justice’s Bureau of Forensic Services examines possible DNA evidence in Richmond last year. Photo: Peter DaSilva, Special To The Chronicle

Photo: Peter DaSilva, Special To The Chronicle

A criminalist with the state Department of Justice’s Bureau of Forensic Services examines possible DNA evidence in Richmond last year.

A criminalist with the state Department of Justice’s Bureau of…

Once tested, DNA evidence from the rape of the 19-year-old linked to Keith Kenard Asberry Jr., an Antioch man with a lengthy crime record. Asberry’s DNA had been in the national and state databases of known and unknown suspects since a 2005 felony firearm conviction. Before his arrest in 2015, Asberry was accused of assaulting another woman in Berkeley, also discovered through DNA.

He has pleaded not guilty. A pretrial hearing is scheduled for September.

O’Malley said her office has eight pending cases involving DNA evidence from previously untested rape kits. In 2014, when she first asked law enforcement agencies in Alameda County to inventory their untested rape kits, they found 1,900 stored in evidence rooms.

She said the final 200 rape kits will be sent soon to be tested. Now, she said, new rape kits are sent for testing within days.

“Because of this, we are starting to identify serial rapists,” O’Malley said.

O’Malley said that when a victim undergoes the lengthy and unpleasant exam needed to provide material for a rape kit — where blood, urine, fingernail clippings, hair and swabs from the mouth, genitals and anus are collected as evidence — they expect that evidence to be tested. She’s talked to victims who were angry that their rape kits weren’t tested for so long. She’s talked to victims whose rape could have been prevented if only an earlier case had been pursued.

“This is about justice and fairness for them,” O’Malley said.

But laws to strengthen requirements for handling rape kits have fallen short in California, often because of pressure from groups such as the California State Sheriffs’ Association. They argue that the state shouldn’t set new mandates without paying for the expenses that come with them.

In 2014 — facing opposition from crime labs and the sheriffs’ lobbyists — lawmakers watered down a bill that would have required police to submit rape kit evidence to a crime lab within five days of collection, and require the lab to process and upload the evidence to national crime databases within 30 days. To get the bill to pass, then-Assemblywoman Nancy Skinner, D-Berkeley, extended the timelines — 20 days for police to send the evidence to crime labs and 120 days for crime labs to process it — and made it a recommendation-only deadline. Gov. Jerry Brown signed the bill into law.

Advocates say the bill has helped, even if it fails to require such deadlines. They also praised the state for eliminating its 10-year statute of limitations last year on new sex crimes. But they say more changes are needed.

Lawmakers are considering three new bills. One would expand services to victims and ensure their evidence can’t be destroyed for 20 years. Another would ask taxpayers to contribute part of their state tax return to fund rape-kit testing.

And Assemblyman David Chiu, D-San Francisco, is trying for a second year to pass a bill to require law enforcement agencies to report how many rape kits they have collected and examined, then disclose why any kit is not being tested. AB41 applies only to new rape kits, and would not require agencies to do an inventory of their evidence rooms. A similar bill Chiu carried last year failed in a Senate fiscal committee, where AB41 is scheduled to be heard next month.

“My bill is part of a long line of failed bills over the past decade to address this issue,” Chiu said. “We’ve counted a half dozen bills attempting to address the rape-kit backlog that have stalled, been vetoed or been watered down.”

The only opposition to AB41 is the California State Sheriffs’ Association, whose lobbyist Cory Salzillo said the bill is yet another unfunded state mandate.

“For the sheriffs, this breaks down to a fiscal and workload issue,” Salzillo told lawmakers at a hearing last month.

District Attorney O’Malley brushed off those concerns, saying millions of dollars in grant money is available to help agencies offset the cost. Also, she said, “literally, this would mean a few more keystrokes to create this data.”

Last year, the San Francisco Police Commission required local police to publicly report twice a year how many rape kits they collect and send to labs, and how they notify victims about their case. The action followed criticism over the Police Department’s backlog of unprocessed rape kits and its failure to notify victims about the results when evidence was tested.

As part of the commission’s directive, the department also adopted a policy last year to send every rape kit to a lab within 24 hours. The crime lab averages 25 days to complete the cases, said department spokesman David Stevenson.

Two years ago, the Police Department reported having 437 rape kits that sat untested for more than a decade and were beyond the statute of limitations. Stevenson said last week that those have all been tested and the agency no longer has a backlog.

Melody Gutierrez is a San Francisco Chronicle staff writer. Email: Twitter: @MelodyGutierrez

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