By David M. Greenwald
Executive Editor
San Francisco, CA – San Francisco DA Chesa Boudin on Monday alleged that the San Francisco Police Department was collecting DNA from sexual assault victims and using it as a means to identify possible suspects in other crimes—a practice that civil liberties proponents have long feared and raised legal and ethical questions regarding the privacy of victims who are submitting their rape kits in hopes of finding perpetrators of crime, not because they themselves are suspects.
The DA’s office announced that they became aware of the practice last week, after a women’s DNA that was collected during a rape exam was used to link her to a property crime that occurred recently.
DA Boudin was quick to denounce the practice. Boudin said he learned that a law enforcement database with DNA collected from sexual assault victims is searched and used to identify possible suspects.
The crime lab attempts to identify crime suspects by searching a database of DNA evidence that contains DNA collected from rape and sexual assault victims.
Boudin condemned the practice of using rape and sexual assault victims’ DNA to attempt to subsequently incriminate them.
“Rapes and sexual assault are violent, dehumanizing, and traumatic. I am disturbed that victims who have the courage to undergo an invasive examination to help identify their perpetrators are being treated like criminals rather than supported as crime victims,” said Boudin.
He added, “We should encourage survivors to come forward—not collect evidence to use against them in the future. This practice treats victims like evidence, not human beings. This is legally and ethically wrong. My office is demanding that this practice end immediately, and is encouraging local and state legislators to introduce legislation to end this practice in California. We remain committed to doing everything in our power to support survivors of sexual violence.”
Boudin was not alone in condemning the practice.
“Sexual assault is one of the most traumatic experiences anyone can undergo,” said California State Senator Scott Wiener. “Coming forward after a sexual assault to provide a rape kit can be re-traumatizing. Too many people decide not to take that step, given the trauma. Yet survivors can at least be assured—or so they thought—that the sample they provide for a rape kit will only be used for the sexual assault investigation and not misused for other purposes. If survivors believe their DNA may end up being used against them in the future, they’ll have one more reason not to participate in the rape kit process. That’s why I’m working with the DA’s office to address this problem through state legislation, if needed.”
“There are already enormous barriers for victims of rape to come forward to report the crime. Any DNA evidence collected from victims of rape must not be used for any other purpose than investigating the rape itself and of course must never be used against the victim herself,” said District 9 Supervisor Hillary Ronen. “I have asked to the City Attorney to draft legislation to prevent DNA evidence—or any sort of evidence from a victim’s rape kit—to be used for anything other than investigating that rape. Rape victims’ DNA should be protected at all levels of government, anywhere.”
When a victim reports a sexual assault, they are asked to undergo a sexual assault examination. During this examination, biological evidence from bodily fluids, fingernail scrapings, and bite and scratch marks is collected from the victim’s body. The victim submits their own DNA sample in order to exclude DNA that comes from the victim, as opposed to the suspect.
At this point, however, only a small percentage of sexual assault victims undergo this testing.
“Sexual assault testing is an invasive and traumatic process for many sexual assault survivors,” the DA’s office pointed out. “For this reason, many survivors are reluctant to undergo such a personally invasive process. Victims of sexual assault consent to their DNA collection for this purpose, not so that their DNA will be retained in a local law enforcement database permanently to be searched years later.”
Nationally, there is a concerning backlog in rape kit testing, as hundreds of thousands of collected rape kits remain untested—a point DA Boudin raised in San Francisco when he ran in 2019 for District Attorney.
“It is shocking that during the time many rape kits were going untested in San Francisco, those kits that were being tested resulted in the DNA of rape victims being saved for future, unrelated investigations,” the DA’s office said on Monday.
“The police violate a victim’s privacy when they put her DNA profile in a criminal database and then maintain that profile to use for reasons that have nothing to do with the case they are investigating,” said Michael Risher, of Counsel at the ACLU Northern California.
“Federal law rightly prohibits the police from uploading these types of samples into the national Combined DNA Index System (CODIS), which is used to match DNA samples collected from crimes scenes with those collected from people convicted of or in some cases arrested for crimes,” Risher said. “Local agencies that maintain separate databases should follow this sensible rule to ensure that victims’ DNA is not retained and used for unrelated purposes. This is especially important for California law-enforcement agencies like SFPD because, unlike the federal Constitution, the California Constitution expressly protects privacy rights and victims’ rights.”
Furthermore, this practice disproportionately impacts marginalized communities, the DA’s office pointed out.
“Research shows that Black women are disproportionately impacted by sexual violence—and are particularly reluctant to come forward to report sexual violence to the police. Members of the LGBTQIA community are also disproportionately impacted by sexual assault and face additional barriers to reporting these crimes, in part due to lack of trust and a history of being overlooked by law enforcement. This makes eliminating barriers to reporting and undergoing sexual assault testing even more important,” the DA’s office said.
“Our legal system is not designed to support survivors of sexual violence, and this is another example of that truth,” said KellyLou Densmore, Director of the Office of Sexual Harassment and Assault Response and Prevention (SHARP). “Many survivors already choose not to share their experiences, particularly transgender people and cisgender women of color, LGBT people and other marginalized groups who may distrust police and face other significant barriers to receiving support after sexual assault. I am disturbed to learn that DNA from rape kits is being retained to use against survivors in the future, and I commend DA Boudin for drawing attention to this shameful practice.”
“Black Women Revolt Against Domestic Violence (BWRADV) objects to a victim’s rape exam, known as a SART exam, being used to self-incriminate past survivors of sexual assault and rape,” said Pamela Tate, Co-Executive Director of Black Women Revolt Against Domestic Violence. “Rape survivors do not give law enforcement a blanket waiver of their rights to not self-incriminate. This type of misrepresentation will have a chilling effect to Black women and women of color in reporting crimes of sexual assault.”
“It can be especially frightening for crime survivors who are immigrants or non-native English speakers to come forward to report a crime like domestic violence or sexual assault,” said Orchid Pusey, Executive Director of the Asian Women’s Shelter. “The DNA evidence that survivors of crimes like domestic violence and sexual assault give to law enforcement through rape kit tests must be treated with the utmost respect. Law enforcement and all of us together should focus on eliminating barriers to survivors reporting crimes. Using DNA evidence from a survivor’s most vulnerable moments to investigate her years later abuses trust and discourages future survivors’ reporting and participation.”
“The District Attorney’s Office is dedicated to centering crime victims and survivors and encouraging them to trust the legal process,” said District Attorney Chief of Victim Services Kasie Lee. “For so long, sexual assault survivors’ experiences have been disregarded or undervalued, and many survivors are understandably distrustful of police and law enforcement. I hope that by protecting victim privacy we can promote trust and encourage more survivors to come forward.”
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