By David M. Greenwald
Executive Editor
San Francisco, CA – The revelations that the police are using DNA submitted by victims of sexual assault for the purpose of rape kits to later search for criminal offenses has both serious constitutional as well practical implications. But at a press conference on Tuesday at the San Francisco DA’s Office, two reporters were more concerned with nitpicking and scoring political points, than the serious allegations that have come to light.
“We come together today because of our collective outrage at a practice that has been going on for years and which must stop,” DA Chesa Boudin said at the press conference. “We’re here today to denounce the practice of using rape and sexual assault survivor’s DNA without their consent, of storing their DNA indefinitely and using it for purposes totally unrelated to the prosecution of their abusers.”
There are both constitutional and practical problems to this practice.
As Boudin noted, rape and sexual assault are “some of the most serious crimes that we see. They’re also some of the most underreported crimes. They’re also some of the crimes that are historically the hardest to prosecute precisely because of the kind of barriers that we’re here to talk about today.”
Boudin pointed out that “thousands of rape kits have gone untested altogether” in San Francisco and elsewhere. And this practices means that women “who came forward to courageously cooperate with law enforcement to submit their body to an invasive procedure in one of their most vulnerable moments” have had their trust “abused,” “not just by the San Francisco police department, crime lab, but we have reason to believe by and labs all across the state of California in a practice that has been described as routine.”
As Supervisor Hillary Rosen pointed out, “Remember, you are just violated in the most brutal and intimate way. And if you decide to come forward and report that crime, you have to go to a hospital and have an invasive medical examination at the worst moments of your life, when all you want to do is take a shower and get any presence of your attacker off your body.
“But instead you have to preserve the evidence. You have to go to the hospital, you have to get a rape kit, then you have to be investigated by the police and you have to potentially stand trial and tell your story to the public. It is so burdensome to report rape. It is so hard that it doesn’t happen very often.”
The real danger of this from a practical, crime prevention perspective is this: “If survivors knew that their own DNA evidence would potentially be stored and used against them at a future date, even less survivors would come forward.”
“Is it legal to do this?” Boudin was asked.
He responded, “We, we have very grave concerns about the legality of this practice, particularly under Marcy’s law, which is the California crime victims bill.” Under that bill, he argued, “the rights that are specifically laid out in that part of the California constitution for victims are the right to have their property returned to them, to be fully informed of what’s happening with their property.”
Moreover, under the Constitution, one must knowingly and voluntarily waive their rights.
Boudin pointed out, “If you’re someone who just suffered a horrific sexual assault, and you’re now in a hospital being undressed, having paperwork from the hospital presented to you, the idea that you’re going to be able to carefully read and understand and knowingly waive rights is preposterous under these circumstances.”
In the patient consent section, which he pointed out twice was in fine print and difficult to read, and even then, “there is no mention anywhere, even in this fine print that DNA, some admitted in this process can be used for purposes, unrelated to the investigation and prosecution of sexual assault. There is no reference anywhere, even in this fine print to the idea that your DNA could be stored in a law enforcement database indefinitely.”
These would seem to be pretty serious concerns then, from both a practical standpoint of dissuading victims from coming forward knowing that what they submit can and will be used against them, as well as constitutional concerns about privacy and the lack of knowingly and voluntarily waiving critical rights.
But at least for two reporters—Sergio Quintana of NBC Bay Area and Alexander Nazaryan of Yahoo News, this was time to nitpick.
Boudin explained in detail how this came to light—reading from the discovery sheet and then the process his office went through to confirm with the San Francisco crime lab that this was standard practice.
Quintana asked, “So do you have any other evidence besides that piece of paper, that this is actually a practice that’s pretty routine? Because what you just said is basically putting a whole lot of doubt into all kinds of other cases that are currently potentially in progress or have already been closed since 2016. Are you resting this entire argument on that one piece of paper?”
“I’m not,” Boudin responded. “We’ve had extensive conversations with staff including leadership at the SFPD crime lab. We were told this is a routine practice.”
What is ironic here is that any reporter who had a document backed up with confirmation from the San Francisco Police crime lab would run that story as confirmed. And yet, for the DA, this didn’t seem to be enough for some of the reporters.
Quintana was not done there. Next he brought in the recent controversy with the police.
“It is also interesting,” he said. “We were just here just a week ago. I’m kind of curious, there’s been a concern that the police department has been concerned about your working with them. Why have a news conference announcing this now and not try to figure out some way to work on policies rather than doing this right now in public?”
Is the reporter really asking the DA why he is coming forward to disclose to the public a blatantly unconstitutional process? Does he really believe it would be better to keep it quiet?
Later the DA pointed out “how opaque this process is” and why “it just came to our attention.”
He explained, “We have every reason to believe as we were told explicitly by the SFPD crime lab, that this has been happening for years, but most of the reports we get don’t explicitly say we tested a victim’s DNA from a rape kit. They don’t say it that way.”
Nowhere in the paperwork, thousands of pages and only a single page with a reference to the 2016 case, and “nowhere on this, does it say that the incident was a rape.”
He said, “It required a proactive assistant district attorney asking questions, looking at the, at the details. It required getting pushback from a defense lawyer who said, wait a second. What’s happening here? The litigation process in this case is what revealed this transgression that doesn’t always happen.”
It was at this point that Yahoo News reporter, Alexander Nazaryan, who is described as a “Senior White House Correspondent” on their webpage, asked again, “I just want to understand the hard evidence that you have is that single piece of paper?”
“No,” Chesa Boudin said.
“Other than that single paper that you displayed, do you have concrete evidence?”
“Yes.”
“That this is a systematic practice that has been used in prosecutions in San Francisco and across the state, and you think, maybe across the country?”
“Yes.”
“And is that evidence that you are willing to present, because it seems like you talked to the crime lab.”
At this point, Chesa Boudin responded more forcefully, “Let me be very clear for those of you who want to nitpick and focus on the details of this case… If you have questions about whether or not this is a systemic practice, I would encourage you to ask the San Francisco Police Department, crime lab, two simple questions. And the answer to both of them will be yes.
“First, do you routinely save in an internal database, all DNA that sexual assault survivors provide you in rape kits? The answer is yes. Second question. Do you regularly test unknown DNA samples from crime scenes against that database? And the answer is yes.”
The San Francisco Chronicle which broke this story on Monday did exactly that. He told the paper, “I think the questions raised by our district attorney today are sufficiently concerning that I have asked my assistant chief for operations to work with our Investigations Bureau to thoroughly review the matter, and report back to me and to our D.A.’s office partners.”
Nazaryan, while acknowledging that “this is a practice that is reprehensible and should be addressed” then attempted to turn the focus on the recall by pointing out that “critics say that you are using this to deflect from the mismanagement of your own office…”
Supervisor Hillary Ronen said she was alerted to the alleged practice last week and explained, “I have currently asked the city attorney’s office to draft legislation making this practice explicitly illegal in San Francisco.”
It is unfortunate that two reporters asked at least five of the questions—many of which were nitpicking and didn’t allow many of the other reporters to ask more pertinent questions. These questions, in my view, show that those reporters are far more worried about scoring political points than getting at the truth of what happened here.
https://em-ui.constantcontact.com/em-ui/em/page/em-ui/email#
Oh oh, another old white guy, or maybe a Senior White ‘House’ Correspondent?
I surprised some of the reporters didn’t ask Boudin about the recent flap where a DA investigator Magen Hayashi testified in court, “I was threatened by attorneys three different times that if I didn’t agree with their warrant they would report me to DA Boudin and that we were looking at termination possibilities. My lieutenant assisted me with this because it was such a severe problem, and he was fired.”
This is so rich coming from the Vanguard.
WHU–UT ??? Described by *who* ? What does race have to do with this? The reporter was being smear-described in the article before asking questions the writer didn’t like. Can’t you just report what they asked without denigrating them because you didn’t like the question? If your argument is strong enough, you don’t need to do that, and especially to smear them with the most insulting tag of all (here anyway): being white #gasp!#. What ‘color’ and title is the person writing the article? To tag them in the same way we get: “David Greenwald, who is described as an “Executive White Editor“. Do y’all see the problem here?
You guys are funny, should be Senior White House Correspondent
You mean like how I already had corrected it up above?
OH, SERIOUSLY? I guess KO caught that and I didn’t. I thought you actually were calling out their race, which, though we have disagreements about issues of race in modern society, that seemed pretty extreme. I’ll give myself a slap on the wrist for not being as sharp or caffeinated as KO this morning who realized what it was supposed to be.
It’s fine. I might call out something like that if there seemed to be something extreme going on, but not there. I did hear that some of the women reporters there had a similar reaction overall as me to those question.
I had always assumed this was done for all DNA, that is, it is put in a central database, and all DNA that comes in is tested against everything in the database. On a practical level, it would seem to me you’d have to either block or exclude victim DNA from criminal DNA, which, knowing something about databases, is pretty hard to do in a way that people don’t have access to the data.
I share your concern about the issue of someone who committed a crime not wanting to have a rape kit done if they know it might tie them to a crime, leaving the rape less solvable. I’d have to know a lot more about how the DNA database is managed and what the policies are in order to have a considered opinion on how to deal with this. I imagine the issue, if investigated, will be found to be nationwide.
Interesting that this allegation came out on the same day that three Progressive S.F. School Board members were recalled by a wide vote margin, in liberal San Francisco of all places. I don’t think that bodes well for Progressive DA Boudin’s recall election that is coming soon.
Came out on Monday
Thank you for the correction but it doesn’t change the dynamics.
That’s probably true and I suspect things are going to be flying pretty heavily in both directions (or more) over the next four months.
If in a city as left as San Francisco that school board vote yesterday has to be a wakeup call for all liberals/progressives/democrats nationwide.
Speaking of Alexander Nazaryan of Yahoo News, he wrote this article today which is currently headlining the Yahoo front page:
Before the school board recall vote where all three candidates lost by over 70% voting for recall I would’ve said the coming Boudin recall election was a tossup. Now I think that there’s a ground swell in S.F. where the people are tired of progressive policies. IMO Boudin gets recalled.
My guess is that Boudin’s fate will be decided by the Asian vote – the same group that ensured the school board members were recalled.
San Francisco has a large Asian population, and there’s no reason to believe that they’re particularly “progressive” (as defined by some).
Let’s see if they’re fooled by the “hate crime” rhetoric, from Boudin. It might be that they don’t care about how such crimes are officially classified (e.g., perceived “easy victim”, vs. outright hatred). It’s possible that they just want to see violent criminals locked-up, regardless. And aren’t all that concerned about the motives of the perpetrators.
But the issue in this article is nothing but defensive noise from Boudin supporters.
My guess is that Boudin is in trouble, but not to the degree as the school board members (for very obvious reasons – based upon their actions and statements).
Since you are hell bent on discussing anything but the actual subject of the article, I would say that the Chronicle article this morning that assessed the DA recall was probably spot on. It seems that the school board recall was much deeper than simply a referendum on progressive policies – and in fact, people I would ordinarily call progressive supported the recall and won’t support the DA recall. I’m not saying Boudin won’t be recalled, but this seemed like a perfect storm of about four or five deep issues many of which have no impact on the DA recall. I will also add that I don’t think SF is a good test case for progressive policies, despite it’s reputation, it is very wealthy and white. That’s why Boudin might be in trouble while Krasner had a huge base of Black voters to survive overwhelmingly in Philly last year.
Seems to me that that’s the primary demographic of what you define as “progressives”. YIMBYs also (largely) fall into this demographic.
So perhaps that will bode well for Boudin. (Or, well-enough.)
My guess is that you’d better not hope that the Asian vote turns out – the same group that was concerned about the elimination of merit-based enrollments at Lowell, for example.
SF Chronicle says no – not a rejection of progressive politics
https://www.sfchronicle.com/opinion/editorials/article/Editorial-No-San-Francisco-s-school-board-16924385.php
I agree – too many progressives supporting the recall. Seems like a perfect storm.
The LA Times says yes:
That’s someone writing in the LA Times, not the LA Times itself.
Oh, pardon me. So if a few people on the editorial board from the SF Chronicle say it it must be true. Is that what you’re saying?
No, I’m distinguishing between the editorial board speaking for the paper and writers speaking for themselves. Granted, I was nitpicking, there is a key point here – the SF Chronicle Editorial Board supported the recall here. I doubt they will support the DA recall (could be wrong, but that’s my guess). There were so many different issues that came together on the 70 percent vote that I don’t think you can call it a rejection of progressivism – particularly when the recall was supported by a number of progressives. I’m not saying Boudin won’t be recalled, only that I think the coalition here was much broader than the coalition against Boudin will be.
But it doesn’t make it anymore true or factual.
I think you meant wealthy and white house 😉
I’ll stop now.
Interesting how the title juxtaposed the DNA records with the SF DA recall, the comments followed, and some were somewhat criticized for being ‘off-topic’… there are two topics in the title of the piece, and the article itself, so I see “no harm, no foul”…
I find the DNA component, and the issues surrounding it to be very interesting… in itself, and where it may be happening or might lead, State and Nationwide… and somewhat disturbing, as to whether it will affect reporting by victims… potentially a very chilling effect.
As to the SF DA recall, I care about as much about that, as I do who came in fourth in the Olympic curling competition…
The reason this article was posted is directly related to the SF DA recall. It’s part of the ongoing campaign.
Exactly, the ongoing Vanguard campaign.
Progressive DA’s good.
Conservative DA’s bad.
So, Keith and Ron agree I missed the point of the article, and chose to do it in response to my post… bravo… enjoy…
Actually BM, I think Ron and I were agreeing with your statement here:
On Tuesday, we published the story on what happened here. I then attended a press conference where two people attempted to take a very serious problem and turn it into something about the recall, which was the focus of this column. I agree – the DNA component is very chilling from both a constitutional perspective and a practical perspective of getting victims to come forward.
Currently the top story on Yahoo and from the NY Times no less:
Progressives turning on fellow Progressives. This doesn’t bode well for progressive justice reforms. It’s becoming more and more evident that Boudin is getting recalled in June.
Breed and Adams are not progressives. Did you read the whole article or just the headline and cherry pick those three grafs?
Yet another top of the page story hurting Boudin on left leaning Yahoo News. It doesn’t look good for Boudin, he’s getting attacked from all sides:
It doesn’t get much more damaging than that. Boudin is probably done come June.