Sexual Assault Evidence Kits Testing Mandate

Constitution Requires the State to Reimburse Local Governments for Mandated Activities. State law tasks the Commission on State Mandates (Commission) with determining whether new state laws or regulations affecting local governments create state-reimbursable mandates. Typically, the process for determining whether a law or regulation is a state-reimbursable mandate takes several years. State law further requires our office to analyze any new mandates identified by the Commission as a part of our annual analysis of the state budget. In particular, state law directs our office to report on the annual state costs for new mandates and make recommendations to the Legislature as to whether the new mandates should be repealed, funded, suspended, or modified. Below, we discuss the Sexual Assault Evidence Kits Testing mandate, which is a newly identified state mandate funded in the Governor’s 2023-24 budget proposal.

Background

Sexual Assault Evidence Kits. Sexual assault evidence (SAE) kits refers to the package of evidence collected by a medical facility from a victim during a sexual assault medical examination which can take several hours. The standard SAE kit consists of multiple body swabs that may contain the perpetrator’s DNA, a reference swab from the victim’s cheek, and other potential evidence. Additionally, some of the swabs in the SAE kit may be used to create a Rapid DNA Service (RADS) kit. Specifically, a RADS kit generally consists of the three most probative evidence swabs from the SAE kit and a reference swab from the victim. As of September 2019, a standardized SAE kit containing a minimum number of basic components is required to be used statewide. State and local agencies are responsible for the costs of purchasing SAE kits.

Medical facilities generally send the SAE kit to the law enforcement agency with jurisdiction over the sexual assault who would then send the SAE kit to a forensic laboratory for testing. Alternatively, in jurisdictions that have rapid turnaround DNA testing programs in place, the medical facility may send the RADS kits directly to the forensic laboratory for testing while the standard SAE kit with all remaining collected evidence is sent to the law enforcement agency. If the RADS kit yields no probative results or an evidence sample does not contain enough DNA for testing, the SAE kit may need to be submitted to the crime laboratory for additional testing. DNA profiles obtained from these kits are uploaded into various DNA databases and can be searched against the DNA profiles collected from other cases, people convicted of crimes, and people who are arrested.

Evidence Tested at Various Laboratories. SAE and RADS kits may be tested in state, local, or private laboratories. The Department of Justice’s Bureau of Forensic Services (BFS) provides criminal laboratory services—including DNA testing as well as SAE and RADS kits testing. Ten regional BFS laboratories provide SAE and RADS kit testing at no charge for local law enforcement and prosecutorial agencies in 46 counties that do not have access to those services. BFS is supported by state revenues. Additionally, 12 counties and 8 cities operate and fund their own laboratories and conduct such testing. (We note that local agencies also contract with private or other governmental laboratories for services.)

Testing Time Frames for SAE Kits. State law requires that prosecution for certain sex crimes occur within specific time periods. For example, prosecution of certain felony sex crimes must be commenced within ten years after commission of the offense. Despite this requirement, state law provides an exception that allows for prosecution of such crimes to commence more than ten years after commission of an offense if a criminal complaint is filed within one year of the date on which the identity of a suspect is conclusively established by DNA testing as long as the DNA evidence was analyzed within two years from the date of the offense. For example, if DNA evidence was collected and processed within two years of an offense, prosecution could still be initiated even if the identity of the perpetrator is conclusively determined more than ten years after the commission of the offense.

In order to ensure that sexual assault forensic evidence is tested in a timely manner, state law strongly encouraged certain procedural steps for sexual assault evidence collected on or after January 1, 2016. Specifically, law enforcement agencies were encouraged to submit SAE kits to a laboratory for testing within 20 days after it was booked into evidence and to ensure a rapid turnaround DNA program is in place. Under a rapid turnaround DNA program, the medical facility can submit RADS kits directly for testing within five days after such evidence is collected. Crime laboratories were directed to either (1) process SAE kits and upload DNA profiles within 120 days after receiving the evidence or (2) send the evidence to another laboratory for testing within 30 days after receiving the evidence. These time frames, however, only applied to the testing of representative samples of the evidence to detect the perpetrator’s DNA—rather than the testing of all submitted evidence included in a SAE kit.

State Law Increased Testing Time Frame Requirements. Chapter 588 of 2019 (SB 22, Leyva) made the time frames discussed above a requirement on state and local agencies—rather than just a strong encouragement. Specifically, Chapter 588 required law enforcement agencies to submit an SAE kit to a laboratory for testing within 20 days after it is booked into evidence and to ensure a rapid turnaround DNA program is in place where the medical facility can submit evidence for testing within five days after such evidence is collected. Chapter 588 also required crime laboratories to either (1) process SAE kits and upload DNA profiles within 120 days after receiving the evidence or (2) send the evidence to another laboratory for testing within 30 days after receiving the evidence.

Commission Determined Legislation Created a State-Reimbursable Mandate. The Commission found that Chapter 588’s requirements to comply with testing time frames created a state-reimbursable mandate. Specifically, the Commission found that this statutory change imposed new state-mandated activities and costs on county and city law enforcement agencies—but not K-12 school district or community college district law enforcement agencies—in order for the time frames to be met. This included potentially requiring the state to pay for the costs of testing the entire kits. Accordingly, the Commission estimates $11.2 million to $22.8 million in initial costs of claims from local governments related to the mandate between 2019-20 through 2020-21. The Commission further estimates annual costs ranging between $7.5 million to $10.8 million.

Governor’s Budget

Governor Funds Mandate Reimbursement Costs. The Governor’s 2023-24 budget proposes $22.8 million General Fund to reimburse local governments for the costs they incurred during the initial claiming period of 2019-20 to 2020-21 to ensure SAE kits were tested within the statutorily required time frames while they were under review by the Commission. The Governor’s budget also includes $10.8 million ongoing General Fund to support such costs in the future. Funding the mandate would make local compliance with the above requirements mandatory in 2023-24 and the state responsible for the costs incurred by local governments.

LAO Comments

Costs Per Kit Might Be Lower Than Expected. We note that costs might be lower than expected. Most notably, the Commission assumed that the average cost to process an SAE kit is approximately $1,000 per kit. This assumption is reasonable given that direct costs included in claims data averaged around this amount. However, a January 2023 California Department of Justice (DOJ) report providing the Legislature with a status update on a grant program providing funding to local law enforcement agencies for SAE kit testing suggests costs could be lower. Specifically, a review of all invoices related to nearly 1,600 kits demonstrated an average cost of roughly $800 per kit. As such, the costs related to this mandate could be lower than expected.

Future Fiscal Effects Difficult to Estimate. The annual costs related to this mandate are difficult to estimate for various reasons. One key reason is that the future ongoing workload and costs will differ by local government based on various factors—such as the number of SAE and RADS kits collected and submitted for testing and what entity does the testing. The number of kits collected annually can fluctuate and is difficult to predict. Additionally, as noted above, DOJ does not charge for testing—which could reduce costs as long as services continue to be free. Costs would increase if DOJ started charging for services. Testing costs could also increase or decrease in the future based on forensic testing processes and available technology.

Recommendation

Fund Mandate. Prior to the enactment of Chapter 588, the statutory time frames related to the testing of SAE kits was strongly encouraged—but not required. The intent of the Chapter 588 was to ensure those standards were met due to perceptions that law enforcement compliance varied across the state. Additionally, timely analysis of such evidence can be critical in obtaining justice for sexual assault victims by ensuring their perpetrators can be identified and charged before statute prevents such cases from being prosecuted. The Commission has found that requiring compliance with these time frames constitutes a reimbursable mandate. Given the state’s interest in promoting justice for sexual assault victims, we recommend funding this mandate to ensure SAE kits are tested in a timely manner.