Advocates hope focus on sex harassment means more priority for testing rape kits

SACRAMENTO — Advocates and lawmakers who have pushed to end California’s backlog of untested rape kits say they are hoping the national attention to sexual harassment and assault will drive efforts to pass much-needed reforms in the state.

And, entering the New Year, they are focusing on one area in particular: California has no idea how many rape kits are sitting on shelves in police evidence or hospital storage rooms.

“We want that changed,” said Ilse Knecht, director of policy and advocacy for the Joyful Heart Foundation, a national group pushing to end backlogs.

The foundation’s initiative, End The Backlog, tracks how well states are tackling the issue and tallies how many untested rape kits each state has based on public-records requests and media reports. The foundation says California has more than 13,000 untested rape kits and that legislative efforts to address the backlog are trailing other states, including Texas and Kentucky.

“Right now, California has a law in the books that says rape kits should be sent to the lab for testing, but that’s a loophole big enough to drive a truck through,” Knecht said. “We want to see that should turn into a shall.”

Knecht said California has made progress. On Jan. 1, California will add several laws to the books, including AB41 by Assemblyman David Chiu, D-San Francisco, which requires 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.

Also going into effect in January is AB1312, by Lorena Gonzalez Fletcher, D-San Diego, which creates additional protections for rape victims, including a requirement that police keep rape kits in evidence for at least 20 years. The law also will make emergency contraception available at no cost to a victim. AB280 by Assemblyman Evan Low, D-San Jose, allows taxpayers to designate a donation on their income tax return to a fund that would help eliminate the state’s rape-kit backlog.

Last year, California ended its 10-year statute of limitations on rape. That law applies only to victims of crimes that occurred on or after Jan. 1, 2017. The state passed a law in 2014 that encouraged law enforcement to test rape kits within certain time frames.

Those bills are helping, Chiu said, but there is more to do. Chiu said he is looking at what bills he could author in 2018 to further help victims.

“With more attention on sexual assault and related issues, my hope is in the coming year we will have more political will to address the rape-kit backlog,” Chiu said. “There is a heightened focus and commitment to addressing these issues. I hope that continues.”

Victim advocate Heather Marlowe said many of the proposed bills fail to meaningfully tackle the reasons so many rape kits have languished in police custody. Many police departments are quick to label a report of rape “unfounded” with little to no investigation, she said.

“Legislators should focus their efforts on holding police accountable in thoroughly investigating all rape complaints,” said Marlowe, who sued the city of San Francisco and its Police Department, charging that her sexual assault case was mishandled in 2010. The case was dismissed. She said she is appealing to the U.S. Ninth Circuit Court of Appeals.

In the past, police departments did not test rape kits when the the suspect was known to the victim, finding little need for DNA evidence if the identity was not in question. However, prosecutors like Alameda County District Attorney Nancy O’Malley said that thinking has changed in recent years. As police agencies tested their backlogs, they found many instances in which one suspect was linked to several victims.

O’Malley’s office is prosecuting a case involving a rape kit that languished in the Berkeley Police Department for six years from a 2008 case in which two teens said they were abducted and raped near Berkeley High School.

Once evidence was tested in 2014 at O’Malley’s behest, DNA evidence linked the incident to a man with a lengthy criminal history who had assaulted a woman in Berkeley.

The suspect, Keith Kenard Asberry Jr., is facing multiple counts of rape, sexual assault and kidnapping in the two cases. He has pleaded not guilty.

The Berkeley Police Department said it could not explain why the rape kit from the teens was never sent to a laboratory to see if there was a DNA profile that could help identify the assailant.

Asberry’s next court date is Jan. 26.

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