By David M. Greenwald
Executive Editor
San Francisco, CA – Many have attempted to kind of shrug off the rape kit DNA controversy that has emerged out of San Francisco. There seems to be an attitude that the only people who have to worry about this are those who have committed, or might believe they will commit, crimes.
But this view misses a lot of the problems with the practice from, for one, a constitutional standpoint—rape victims are not consenting to a search, which is something critics are consistently ignoring.
But it also ignores a much more practical problem—the victims of sexual assault are often people on the margins as it is, engaged in other risky behavior and targeted precisely because they are vulnerable.
As it stands today, despite concerted efforts to expand rape kits, only about 23 percent of victims report the sexual assault, and experts and victims’ advocates worry that these practices will further diminish that number.
The problem is that in order to report a crime, victims must undergo a forensic exam where a nurse collects 
biological evidence that may contain DNA from the assailant, such as blood, hair, saliva, and skin cells. They also have to submit their own DNA to check against when determining the DNA of the attacker.
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.”
In short, you might be trading off a few cold DNA hits for many fewer people submitting their DNA to be able to catch sexual predators.
“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,” SF DA Chesa Boudin said at his press conference on February 15.
The story has attracted a lot of national media attention with full articles in the New York Times, Washington Post, USA Today and Wired—among many others.
“Sexual assault victims subject themselves to this very invasive exam for one purpose, and that is to identify their assailant,” says Camille Cooper, vice president of public policy at RAINN, the Rape, Abuse & Incest National Network, a nonprofit that aims to prevent sexual assault and help survivors as reported in Wired. “Any use of their DNA for any other purpose is wholly inappropriate and unethical.”
Andrea Roth, a law professor at the University of California, Berkeley, specialized in forensic science and has researched these databases.
She told Wired that “even if you never plan to commit a crime, there’s reason to be concerned about your DNA ending up in one of these databases.”
A big problem is DNA transfer where DNA is passed to objects and other people.
A search of Google this past week showed this was actually a lot more common than people want to believe and at times results in wrongful arrests and even wrongful convictions.
In other states, “through a controversial technique called familial searching, your sample could be used to incriminate a close family member.”
Roth told Wired she “imagines even more questionable law enforcement uses, such as using DNA to learn the identities of protestors who gathered in a particular area.”
The incident got the attention of Adam Schiff, who asked FBI Director Christopher Wray to investigate whether the department violated any federal laws by storing a sexual assault survivor’s DNA profile in a database to later use to investigate another crime.
Schiff said he is also exploring “legislative remedies to this potential violation of law.”
While the practice is of questionable legality, right now it would have to rely on the courts to find it specifically unconstitutional.
Boudin explained on February 15 that “we have very grave concerns about the legality of this practice, particularly under Marsy’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.”
But there are no national laws that prohibit the establishment of internal police databases or that restrict what kinds of DNA samples can go into them.
The technology keeps changing and the science keeps changing, and the laws need to keep changing as well,” Mark Rothstein, founding director of the Institute for Bioethics, Health Policy, and Law at the University of Louisville School of Medicine, told Wired.
Mark Barash, an assistant professor and forensic science program coordinator at San Jose State University, told USA Today what the lab has been doing is “absolutely wrong” and “contradictory to any professional ethics.”
He worries other similar cases have gone on to be prosecuted.
“In reality, in probably around 99% of the cases involving DNA evidence, what happens is that the defense won’t argue on the results, they (attorneys) won’t even go further in looking at the details of the case” because of time and resources, Barash told USA TODAY.
USA Today noted, “The disclosure of the crime lab’s practice of searching sexual assault victim DNA profiles set fire to groups across the state that have worked for years to improve the chronically low levels of sexual assault reporting to law enforcement.”
Meanwhile, “Legal experts questioned whether the usage was a HIPAA violation, unlawful search and seizure, or simply an end-around providing such victims-turned-suspects with constitutional rights that would otherwise be afforded them.”
“Good lord,” said retired San Diego Police Detective Carlton Hershman, who called the disclosure a “nuclear bomb.
“That’s just inappropriate, in my opinion. You can’t take just a swath of people and throw them in the databank,” Hershman said. “I don’t care if you’re a career criminal, I don’t care if you’re a gang member and you’ve been shot. Your DNA should not be dumped in with suspects. That’s not how we operate.”
“Even if we’re talking about a more serious crime, it doesn’t justify the tremendous damage this kind of policy does to trust and cooperation,” Boudin said.
“Every district attorney I’ve spoken to in the country—far and wide, red and blue—has absolutely been horrified at this practice,” Boudin said. “It never should have happened.”
As I said, you might catch a few cold DNA hits this week, but the collateral damage here seems to far outweigh any benefit gained. For some reason, people don’t seem to grasp that but, across the board, most of the experts who work with victims and even most prosecutors do.
