Penal & Evidence Codes
Below is a collection of state statutes that define many criminal offenses and their corresponding penalties as they pertain to sexual offenses. The California Evidence Code sets out rules about what kind of evidence may be introduced in a criminal jury trial.
(a) Rape is an act of sexual intercourse accomplished under any of the following circumstances: (1) If a person who is not the spouse of the person committing the act is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law. (2) If it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused. (4) If a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) If a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) If the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) If the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) For purposes of this section, the following definitions apply: (1) “Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress. (2) “Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.
CA. PEN. CODE 13835.5 - Local Assistance Centers for Victims and Witnesses
(a) Comprehensive services shall include all of the following primary services: (1) Crisis intervention, providing timely and comprehensive responses to the individual needs of victims. (2) Emergency assistance, directly or indirectly providing food, housing, clothing, and, when necessary, cash. (3) Resource and referral counseling to agencies within the community which are appropriate to meet the victim’s needs. (4) Direct counseling of the victim on problems resulting from the crime. (5) Assistance in the processing, filing, and verifying of claims filed by victims of crime pursuant to Article 1 (commencing with Section 13959) of Part 4 of Division 3 of Title 2 of the Government Code. (6) Assistance in obtaining the return of a victim’s property held as evidence by law enforcement agencies, if requested. (7) Orientation to the criminal justice system. (8) Court escort. (9) Presentations to and training of criminal justice system agencies. (10) Public presentations and publicity. (11) Monitoring appropriate court cases to keep victims and witnesses apprised of the progress and outcome of their case. (12) Notification to friends, relatives, and employers of the occurrence of the crime and the victim’s condition, upon request of the victim. (13) Notification to the employer of the victim or witness, if requested by the victim or witness, informing the employer that the employee was a victim of or witness to a crime and asking the employer to minimize any loss of pay or other benefits which may result because of the crime or the employee’s participation in the criminal justice system. (14) Upon request of the victim, assisting in obtaining restitution for the victim, in ascertaining the victim’s economic loss, and in providing the probation department, district attorney, and court with information relevant to his or her losses prior to the imposition of sentence. (b) Comprehensive services may include the following optional services, if their provision does not preclude the efficient provision of primary services: (1) Employer intervention. (2) Creditor intervention. (3) Child care. (4) Notification to witnesses of any change in the court calendar. (5) Funeral arrangements. (6) Crime prevention information. (7) Witness protection, including arranging for law enforcement protection or relocating witnesses in new residences. (8) Assistance in obtaining temporary restraining orders. (9) Transportation. (10) Provision of a waiting area during court proceedings separate from defendants and families and friends of defendants.
The minimum standards for the examination and treatment of victims of sexual assault or attempted sexual assault, including child sexual abuse, and the collection and preservation of evidence therefrom include all of the following: (a) Law enforcement authorities shall be notified. (b) In conducting the medical evidentiary examination, the outline indicated in the form adopted pursuant to subdivision (c) of Section 13823.5 shall be followed. (c) Consent for a physical examination, treatment, and collection of evidence shall be obtained. (1) Consent to an examination for evidence of sexual assault shall be obtained prior to the examination of a victim of sexual assault and shall include separate written documentation of consent to each of the following: (A) Examination for the presence of injuries sustained as a result of the assault. (B) Examination for evidence of sexual assault and collection of physical evidence. (C) Photographs of injuries. (2) Consent to treatment shall be obtained in accordance with the usual policy of the hospital, clinic, sexual assault forensic examination team, or other emergency medical facility. (3) A victim of sexual assault shall be informed that the victim may refuse to consent to an examination for evidence of sexual assault, including the collection of physical evidence, but that a refusal is not a ground for denial of treatment of injuries and for possible pregnancy and sexually transmitted diseases, if the person wishes to obtain treatment and consents thereto. (4) Pursuant to Chapter 3 (commencing with Section 6920) of Part 4 of Division 11 of the Family Code, a minor may consent to hospital, medical, and surgical care related to a sexual assault without the consent of a parent or guardian, and a minor may consent to, or withhold consent for, a medical evidentiary examination without the consent of a parent or guardian. (5) In cases of known or suspected child abuse, the consent of the parents or legal guardian is not required. In the case of suspected child abuse and nonconsenting parents, the consent of the local agency providing child protective services or the local law enforcement agency shall be obtained. Local procedures regarding obtaining consent for the examination and treatment of, and the collection of evidence from, children from child protective authorities shall be followed. (d) A history of sexual assault shall be taken. The history obtained in conjunction with the examination for evidence of sexual assault shall follow the outline of the form established pursuant to subdivision (c) of Section 13823.5 and shall include all of the following: (1) A history of the circumstances of the assault. (2) For a child, any previous history of child sexual abuse and an explanation of injuries, if different from that given by parent or person accompanying the child. (3) Physical injuries reported. (4) Sexual acts reported, whether or not ejaculation is suspected, and whether or not a condom or lubricant was used. (5) Record of relevant medical history. (e) (1) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider. (2) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim at no cost to the victim. (f) (1) Each adult and minor victim of sexual assault who consents to a medical evidentiary examination shall have a physical examination that includes, but is not limited to, all of the following: (A) Inspection of the clothing, body, and external genitalia for injuries and foreign materials. (B) Examination of the mouth, vagina, cervix, penis, anus, and rectum, as indicated. (C) Documentation of injuries and evidence collected. (2) Children shall not have internal vaginal or anal examinations unless absolutely necessary. This paragraph does not preclude careful collection of evidence using a swab. (g) The collection of physical evidence shall conform to the following procedures: (1) Each victim of sexual assault who consents to an examination for collection of evidence shall have the following items of evidence collected, except if the victim specifically objects: (A) Clothing worn during the assault. (B) Foreign materials revealed by an examination of the clothing, body, external genitalia, and pubic hair combings. (C) Swabs from the mouth, vagina, rectum, and penis, as indicated, to determine the presence or absence of semen. (D) If indicated by the history of contact, the victim’s urine and blood sample, for toxicology purposes, to determine if drugs or alcohol were used in connection with the assault. Toxicology results obtained pursuant to this paragraph shall not be admissible in any criminal or civil action or proceeding against a victim who consents to the collection of physical evidence pursuant to this paragraph. Except for purposes of prosecuting or defending the crime or crimes necessitating the examination specified by this section, any toxicology results obtained pursuant to this paragraph shall be kept confidential, may not be further disclosed, and shall not be required to be disclosed by the victim for any purpose not specified in this paragraph. The victim shall specifically be informed of the immunity and confidentiality safeguards provided by this subparagraph. (2) Each victim of sexual assault who consents to an examination for the collection of evidence shall have reference specimens taken, except if the victim specifically objects thereto. A reference specimen is a standard from which to obtain baseline information and may be retained for DNA comparison and analysis. Reference specimens may also be collected at a later time if they are needed. These specimens shall be taken in accordance with the standards of the local criminalistics laboratory. (3) Sexually transmitted infection testing and presumptive treatment based on current guidelines of the federal Centers for Disease Control and Prevention may be provided, if indicated by the history of contact. Specimens for a pregnancy test shall be taken, if indicated by the history of contact and the age of the victim. Baseline testing for sexually transmitted infections shall be done for a child, a person with a disability, or a person who is residing in a long-term care facility, if forensically indicated. (4) (A) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider. (B) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim at no cost to the victim. (5) For a victim of sexual assault with an assault history of strangulation, best practices shall be followed for a complete physical examination and diagnostic testing to prevent adverse outcomes or morbidity and documentation on a supplemental medical evidentiary examination form. (h) Preservation and disposition of physical evidence shall conform to the following procedures: (1) All swabs shall be air-dried before packaging. (2) All items of evidence including laboratory specimens shall be clearly labeled as to the identity of the source and the identity of the person collecting them. (3) The evidence shall have a form attached which documents its chain of custody and shall be properly sealed. (4) The evidence shall be turned over to the proper law enforcement agency. (5) A hospital, clinic, or other emergency medical facility where medical evidentiary examinations are conducted shall develop and implement written policies and procedures for maintaining the confidentiality of medical evidentiary examination reports, including proper preservation and disposition of the reports if the examination program ceases operation, in order to prevent destruction of the medical evidentiary examination reports. (i) On or before January 1, 2021, a hospital, clinic, or other emergency medical facility at which medical evidentiary examinations are conducted shall implement a system to maintain medical evidentiary examination reports in a manner that facilitates their release only as required or authorized by law. This subdivision does not require a hospital, clinic, or other emergency medical facility to review a patient’s medical records prior to January 1, 2021, in order to separate medical evidentiary examination reports from the rest of the patient’s medical records.
(a) The following rights are hereby established as the statutory rights of victims and witnesses of crimes: (1) To be notified as soon as feasible that a court proceeding to which the victim or witness has been subpoenaed as a witness will not proceed as scheduled, provided the prosecuting attorney determines that the witness’ attendance is not required. (2) Upon request of the victim or a witness, to be informed by the prosecuting attorney of the final disposition of the case, as provided by Section 11116.10. (3) For the victim, the victim’s parents or guardian if the victim is a minor, or the next of kin of the victim if the victim has died, to be notified of all sentencing proceedings, and of the right to appear, to reasonably express their views, have those views preserved by audio or video means as provided in Section 1191.16, and to have the court consider their statements, as provided by Sections 1191.1 and 1191.15. (4) For the victim, the victim’s parents or guardian if the victim is a minor, or the next of kin of the victim if the victim has died, to be notified of all juvenile disposition hearings in which the alleged act would have been a felony if committed by an adult, and of the right to attend and to express their views, as provided by Section 656.2 of the Welfare and Institutions Code. (5) Upon request by the victim or the next of kin of the victim if the victim has died, to be notified of any parole eligibility hearing and of the right to appear, either personally as provided by Section 3043, or by other means as provided by Sections 3043.2 and 3043.25, to reasonably express their views, and to have their statements considered, as provided by Section 3043 of this code and by Section 1767 of the Welfare and Institutions Code. (6) Upon request by the victim or the next of kin of the victim if the crime was a homicide, to be notified of an inmate’s placement in a reentry or work furlough program, or notified of the inmate’s escape as provided by Section 11155. (7) To be notified that a witness may be entitled to witness fees and mileage, as provided by Section 1329.1. (8) For the victim, to be provided with information concerning the victim’s right to civil recovery and the opportunity to be compensated from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13959) of Part 4 of Division 3 of Title 2 of the Government Code and Section 1191.2 of this code. (9) To the expeditious return of property that has allegedly been stolen or embezzled, when it is no longer needed as evidence, as provided by Chapter 12 (commencing with Section 1407) and Chapter 13 (commencing with Section 1417) of Title 10 of Part 2. (10) To an expeditious disposition of the criminal action. (11) To be notified, if applicable, in accordance with Sections 679.03 and 3058.8 if the defendant is to be placed on parole. (12) For the victim, upon request, to be notified of any pretrial disposition of the case, to the extent required by Section 28 of Article I of the California Constitution. (A) A victim may request to be notified of a pretrial disposition. (B) The victim may be notified by any reasonable means available. This paragraph is not intended to affect the right of the people and the defendant to an expeditious disposition as provided in Section 1050. (13) For the victim, to be notified by the district attorney’s office of the right to request, upon a form provided by the district attorney’s office, and receive a notice pursuant to paragraph (14), if the defendant is convicted of any of the following offenses: (A) Assault with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289, in violation of Section 220. (B) A violation of Section 207 or 209 committed with the intent to commit a violation of Section 261, 286, 287, 288, or 289, or former Section 262 or 288a. (C) Rape, in violation of Section 261. (D) Oral copulation, in violation of Section 287 or former Section 288a. (E) Sodomy, in violation of Section 286. (F) A violation of Section 288. (G) A violation of Section 289. (14) When a victim has requested notification pursuant to paragraph (13), the sheriff shall inform the victim that the person who was convicted of the offense has been ordered to be placed on probation, and give the victim notice of the proposed date upon which the person will be released from the custody of the sheriff. (b) The rights set forth in subdivision (a) shall be set forth in the information and educational materials prepared pursuant to Section 13897.1. The information and educational materials shall be distributed to local law enforcement agencies and local victims’ programs by the Victims’ Legal Resource Center established pursuant to Chapter 11 (commencing with Section 13897) of Title 6 of Part 4. (c) Local law enforcement agencies shall make available copies of the materials described in subdivision (b) to victims and witnesses. (d) This section is not intended to affect the rights and services provided to victims and witnesses by the local assistance centers for victims and witnesses. (e) The court shall not release statements, made pursuant to paragraph (3) or (4) of subdivision (a), to the public prior to the statement being heard in court.
(a) A victim of sexual assault as the result of any offense specified in paragraph (1) of subdivision (b) of Section 264.2 has the right to have victim advocates and a support person of the victim’s choosing present at any interview by law enforcement authorities, district attorneys, or defense attorneys. A victim retains this right regardless of whether he or she has waived the right in a previous medical evidentiary or physical examination or in a previous interview by law enforcement authorities, district attorneys, or defense attorneys. However, the support person may be excluded from an interview by law enforcement or the district attorney if the law enforcement authority or the district attorney determines that the presence of that individual would be detrimental to the purpose of the interview. As used in this section, “victim advocate” means a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, or a victim advocate working in a center established under Article 2 (commencing with Section 13835) of Chapter 4 of Title 6 of Part 4. (b) (1) Prior to the commencement of the initial interview by law enforcement authorities or the district attorney pertaining to any criminal action arising out of a sexual assault, a victim of sexual assault as the result of any offense specified in Section 264.2 shall be notified in writing by the attending law enforcement authority or district attorney that he or she has the right to have victim advocates and a support person of the victim’s choosing present at the interview or contact, about any other rights of the victim pursuant to law in the card described in subdivision (a) of Section 680.2, and that the victim has the right to request to have a person of the same gender or opposite gender as the victim present in the room during any interview with a law enforcement official or district attorney, unless no such person is reasonably available. This subdivision applies to investigators and agents employed or retained by law enforcement or the district attorney. (2) At the time the victim is advised of his or her rights pursuant to paragraph (1), the attending law enforcement authority or district attorney shall also advise the victim of the right to have victim advocates and a support person present at any interview by the defense attorney or investigators or agents employed by the defense attorney. (3) The presence of a victim advocate shall not defeat any existing right otherwise guaranteed by law. A victim’s waiver of the right to a victim advocate is inadmissible in court, unless a court determines the waiver is at issue in the pending litigation. (4) The victim has the right to request to have a person of the same gender or opposite gender as the victim present in the room during any interview with a law enforcement official or district attorney, unless no such person is reasonably available. It is the intent of the Legislature to encourage every interviewer in this context to have trauma-based training. (c) An initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects shall not constitute a law enforcement interview for purposes of this section. (d) A law enforcement official shall not, for any reason, discourage a victim of an alleged sexual assault from receiving a medical evidentiary or physical examination.
CA. PEN. CODE 679.026 - Victims Survival and Resource Guide
(a) It is the intent of the people of the State of California in enacting this section to implement the rights of victims of crime established in Section 28 of Article I of the California Constitution to be informed of the rights of crime victims enumerated in the Constitution and in the statutes of this state. (b) Every victim of crime has the right to receive without cost or charge a list of the rights of victims of crime recognized in Section 28 of Article I of the California Constitution. These rights shall be known as “Marsy Rights.” (c) (1) Every law enforcement agency investigating a criminal act and every agency prosecuting a criminal act shall, as provided herein, at the time of initial contact with a crime victim, during follow-up investigation, or as soon thereafter as deemed appropriate by investigating officers or prosecuting attorneys, provide or make available to each victim of the criminal act without charge or cost a “Marsy Rights” card described in paragraphs (3) and (4). (2) The victim disclosures required under this section shall be available to the public at a state funded and maintained Web site authorized pursuant to Section 14260 of the Penal Code to be known as “Marsy’s Page.” (3) The Attorney General shall design and make available in “.pdf” or other imaging format to every agency listed in paragraph (1) a “Marsy Rights” card, which shall contain the rights of crime victims described in subdivision (b) of Section 28 of Article I of the California Constitution, information on the means by which a crime victim can access the web page described in paragraph (2), and a toll-free telephone number to enable a crime victim to contact a local victim’s assistance office. (4) Every law enforcement agency which investigates criminal activity shall, if provided without cost to the agency by any organization classified as a nonprofit organization under paragraph (3) of subdivision (c) of Section 501 of the Internal Revenue Code, make available and provide to every crime victim a “Victims’ Survival and Resource Guide” pamphlet and/or video that has been approved by the Attorney General. The “Victims’ Survival and Resource Guide” and video shall include an approved “Marsy Rights” card, a list of government agencies, nonprofit victims’ rights groups, support groups, and local resources that assist crime victims, and any other information which the Attorney General determines might be helpful to victims of crime. (5) Any agency described in paragraph (1) may in its discretion design and distribute to each victim of a criminal act its own Victims’ Survival and Resource Guide and video, the contents of which have been approved by the Attorney General, in addition to or in lieu of the materials described in paragraph (4).
CA. PEN. CODE 679.08 - Victim Rights Card
(a) (1) Whenever there has been a crime committed against a victim, the law enforcement officer assigned to the case may provide the victim of the crime with a “Victim’s Rights Card,” as specified in subdivision (b). (2) This section shall be operative in a city or county only upon the adoption of a resolution by the city council or board of supervisors to that effect. (3) This section shall not be interpreted as replacing or prohibiting any services currently offered to victims of crime by any agency or person affected by this section. (b) A “Victim’s Rights Card” means a card or paper that provides a printed notice with a disclaimer, in at least 10-point type, to a victim of a crime regarding potential services that may be available under existing state law to assist the victim. The printed notice shall include the following language or language substantially similar to the following: “California law provides crime victims with important rights. If you are a victim of crime, you may be entitled to the assistance of a victim advocate who can answer many of the questions you might have about the criminal justice system.” “Victim advocates can assist you with the following: (1) Explaining what information you are entitled to receive while criminal proceedings are pending. (2) Assisting you in applying for restitution to compensate you for crime-related losses. (3) Communicating with the prosecution. (4) Assisting you in receiving victim support services. (5) Helping you prepare a victim impact statement before an offender is sentenced.” “To speak with a victim advocate, please call any of the following numbers:” [Set forth the name and phone number, including area code, of all victim advocate agencies in the local jurisdiction] “PLEASE NOTE THAT THIS INFORMATION IS PROVIDED IN AN ATTEMPT TO ASSIST THE VICTIM, BY NOTIFYING THE VICTIM ABOUT SOME, BUT NOT NECESSARILY ALL, SERVICES AVAILABLE TO THE VICTIM; THE PROVISION OF THIS INFORMATION AND THE INFORMATION CONTAINED THEREIN IS NOT LEGAL ADVICE AND IS NOT INTENDED TO CONSTITUTE A GUARANTEE OF ANY VICTIM’S RIGHTS OR OF A VICTIM’S ELIGIBILITY OR ENTITLEMENT TO ANY SPECIFIC BENEFITS OR SERVICES.” (c) Any act or omission covered by this section is a discretionary act pursuant to Section 820.2 of the Government Code.
CA. PEN. CODE 680.02 - Sexual Assault Victim Rights Card
(a) Upon the initial interaction with a sexual assault victim, a law enforcement officer or medical provider shall provide the victim with a card to be developed by every local law enforcement agency, in consultation with sexual assault experts, that explains all of the rights of sexual assault victims in clear language that is comprehensible to a person proficient in English at the fifth grade level, in at least 12-point font, and available in all major languages of the state. This card shall include, but is not limited to, all of the following: (1) A clear statement that a sexual assault victim is not required to participate in the criminal justice system or to receive a medical evidentiary or physical examination in order to retain their rights under law. (2) A clear statement that, under Section 1219 of the Code of Civil Procedure, a court may not imprison or otherwise confine or place in custody a victim of sexual assault or domestic violence for contempt if the contempt consists of refusing to testify concerning the crime. (3) Telephone or internet website contact information for a nearby rape crisis center and sexual assault counselor. (4) Information about the types of law enforcement protection available to the sexual assault victim, including a temporary protection order, and the process to obtain that protection. (5) Instructions for requesting the results of the analysis of the victim’s sexual assault forensic evidence. (6) Information about state and federal compensation funds for medical and other costs associated with the sexual assault and information on any municipal, state, or federal right to restitution for sexual assault victims if a criminal trial occurs. (7) A clear statement that the victim has the right to have a sexual assault counselor and at least one other support person of the victim’s choosing present at any initial medical evidentiary examination, physical examination, or investigative interview arising out of a sexual assault, and that a sexual assault counselor can be contacted 24 hours a day. (8) Information about the rate of potential evidence degradation. (9) A clear statement that if sexual assault forensic evidence will be tested, it should be transported to the crime laboratory and analyzed within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803. (10) A clear statement that the law enforcement agency or crime laboratory will retain the sexual assault forensic evidence for at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, at least until the victim’s 40th birthday. (b) A law enforcement official shall, upon written request by a sexual assault victim, furnish a free copy of the initial crime report related to the sexual assault, regardless of whether the report has been closed by the law enforcement agency, to the victim. A law enforcement agency may redact personal, identifying information in the copy furnished to the victim. (c) A prosecutor shall, pursuant to Section 290.46, upon written request by a sexual assault victim, provide the convicted defendant’s information on a sex offender registry to the victim, if the defendant is required to register as a sex offender. (d) The law enforcement agency shall provide sufficient copies of the card described in subdivision (a) to each provider in its jurisdiction of medical evidentiary examinations or physical examinations arising out of sexual assault.
CA. PEN. CODE 680.03 - Sexual Assault Evidence Kit Testing
(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 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 (g) 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) The SAFE-T database shall, on or before July 1, 2022, allow a survivor of sexual assault to track and receive updates privately, securely, and electronically regarding the status and location of the survivor’s sexual assault evidence kit, as provided in Section 680.1. (f) 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. (g) 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. (h) The requirements of this section shall only apply to sexual assault evidence kit evidence collected on or after January 1, 2018.
Evidence Code 1035.2 - Defines a Sexual Assault Advocate
As used in this article, “sexual assault counselor” means any of the following: (a) A person who is engaged in any office, hospital, institution, or center commonly known as a rape crisis center, whose primary purpose is the rendering of advice or assistance to victims of sexual assault and who has received a certificate evidencing completion of a training program in the counseling of sexual assault victims issued by a counseling center that meets the criteria for the award of a grant established pursuant to Section 13837 of the Penal Code and who meets one of the following requirements: (1) Is a psychotherapist as defined in Section 1010; has a master’s degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling. (2) Has 40 hours of training as described below and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas: (A) Law. (B) Medicine. (C) Societal attitudes. (D) Crisis intervention and counseling techniques. (E) Role playing. (F) Referral services. (G) Sexuality. (b) A person who is engaged in a program on the campus of a public or private institution of higher education, whose primary purpose is the rendering of advice or assistance to victims of sexual assault and who has received a certificate evidencing completion of a training program in the counseling of sexual assault victims issued by a counseling center that meets the criteria for the award of a grant established pursuant to Section 13837 of the Penal Code and who meets one of the following requirements: (1) Is a psychotherapist as defined in Section 1010; has a master’s degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling. (2) Has 40 hours of training as described below and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas: (A) Law. (B) Medicine. (C) Societal attitudes. (D) Crisis intervention and counseling techniques. (E) Role playing. (F) Referral services. (G) Sexuality. (c) A person who is employed by any organization providing the programs specified in Section 13835.2 of the Penal Code, whether financially compensated or not, for the purpose of counseling and assisting sexual assault victims, and who meets one of the following requirements: (1) Is a psychotherapist as defined in Section 1010; has a master’s degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape assault counseling. (2) Has the minimum training for sexual assault counseling required by guidelines established by the employing agency pursuant to subdivision (c) of Section 13835.10 of the Penal Code, and is supervised by an individual who qualifies as a counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include, but not be limited to, the following areas: (A) Law. (B) Victimology. (C) Counseling. (D) Client and system advocacy. (E) Referral services.
Evidence Code 1036.2. - Defines Sexual Assault
As used in this article, “sexual assault” includes all of the following: (a) Rape, as defined in Section 261 of the Penal Code. (b) Unlawful sexual intercourse, as defined in Section 261.5 of the Penal Code. (c) Rape in concert with force and violence, as defined in Section 264.1 of the Penal Code. (d) Sodomy, as defined in Section 286 of the Penal Code, except a violation of subdivision (e) of that section. (e) A violation of Section 288 of the Penal Code. (f) Oral copulation, as defined in Section 287 of, or former Section 288a of, the Penal Code, except a violation of subdivision (e) of those sections. (g) Sexual penetration, as defined in Section 289 of the Penal Code. (h) Annoying or molesting a child under 18 years of age, as defined in Section 647a of the Penal Code. (i) Any attempt to commit any of the acts listed in this section.