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January 24, 2014
Editorial Notebook: What are we willing to pay so rapists don't go free?

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(Jan. 24 — By Foon Rhee, frhee@sacbee.com)

Who could be against making sure that more rapists get caught and put behind bars?

If only it were that simple.

A bill before the Legislature to require testing of all rape evidence kits is the latest to ask a profound question: What price are we willing to pay for justice?

Under Assembly Bill 1517, police and sheriff's departments would have five days to send sexual assault evidence to a crime lab, and the lab would have 30 days to put the DNA profile into the state database. Authorities would have to notify the victim if they can't meet those deadlines.

The cost of the measure is unclear because no one knows how many rape kits collected by local law agencies in California are sitting untested in their evidence rooms.

Assemblywoman Nancy Skinner, a Berkeley Democrat and the bill's primary author, is well aware of the price tag problem. "But I want actual testing, not just a feel-good bill," she told me.

As the measure goes through legislative review, she and other supporters will seek ways to reduce the cost. For instance, it's possible to first upload the best DNA material at about one-third the cost of a comprehensive analysis, and do the full testing once there's an actual prosecution.

Whatever sum is needed would come from the state, possibly from court fees. Skinner says the state can't count on federal grants, though there's a bid in Congress to provide funding to reduce the backlog of untested rape kits, estimated at 400,000 nationwide.

Potential cost was a primary reason that bills on this issue were vetoed. A 2011 measure would have required all rape kits to be tested in 10 mostly rural counties with low rates of rape arrests, including El Dorado. That would have cost $155,000 to $310,000 a year, depending on the number of cases, plus "potentially significant" costs of imprisoning rapists who wouldn't have been convicted otherwise.

As Skinner notes, the case for the bill is stronger now. First, the state is no longer in a dire budget crunch, so there is more money available. Second, the state's DNA database continues to grow, to 2.2 million profiles. Anyone arrested in California on suspicion of any felony since Jan. 1, 2009, has been required to give a sample. That increases the chances of a match.

While not every untested rape kit means someone is not being prosecuted, it is indisputable that too many rapes are going unsolved. In 2012, the state reported 7,828 rapes but only 1,682 arrests.

Time is of the essence. Unless it's an aggravated case that could lead to a life sentence, charges must be filed in a rape case within 10 years of the offense. But that clock stops if DNA evidence is put in the state's database within two years of the crime and a "John Doe" is charged. Also, physical evidence can degrade over time if it is not kept in good conditions.

This is a cause for advocacy groups, which point to the thousands of unopened rape kits found in Los Angeles County in 2008, and thousands discovered sitting in police property rooms in the Bay Area last year.

The Sacramento County District Attorney's Office says there's no local backlog of untested rape kits in cases where there is an active investigation or prosecution. There are about 200 rape kits from the last three years that have not been analyzed because there is no active prosecution, the victim isn't cooperating or because the suspect is already known.

Even without the bill, the office is considering a plan to test all those rape kits, which would take two to three months.

DNA Lab Director Jill Spriggs and Chief Deputy DA Steve Grippi told me that they have to weigh the value of potentially solving other crimes by putting more DNA profiles into the system against the possible cost because crime lab analysts aren't working on other cases.

The DA's Office has not taken a position on Skinner's bill. Nor has Gov. Jerry Brown's office or the office of Attorney General Kamala Harris, which went to a lot of effort and expense to clear the testing backlog in state labs.

Promoting her bill in a news conference Tuesday, Skinner called it a "second assault" on the victim to fail to test a rape kit. She was joined by a San Francisco playwright who was drugged and raped at the 2010 Bay to Breakers road race and who had to push police to test DNA evidence from her case, more than two years after the assault.

Heather Marlowe, 32, wondered aloud whether her attacker would have been arrested by now if the rape kit had been tested right away. "Was the evidence collected from me disintegrating in a property room somewhere?" she asked.

That's a tough question, one that can't be swept aside by just saying it would cost too much to test all rape kits. We all pay a price when sexual predators roam our streets.

This is an issue of justice, not just dollars and cents.