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State your case: Should crime victims’ DNA be included in a criminal database?

A woman whose rape kit DNA was used by San Francisco police to arrest her for an unrelated property crime is now planning to sue the city


AP Photo/Pat Sullivan

A woman in San Francisco was arrested for a property crime for which she became a suspect after a DNA match connected her to the crime. The DNA came not from a voluntary submission or as a result of a previous arrest, but from a sample that was volunteered as part of a forensic examination of her person after she reported being the victim of a sexual assault. Officials say that the commingling of her victim DNA with the database for criminal investigation was an unforeseen and unintentional result of using various DNA samples for quality control measures.

The undisclosed property crime was dismissed. Whether that was due to a looming lawsuit, an ethical and legal question that might not survive a court challenge, the case has rattled civil rights advocates and politicians. The woman now plans to sue the city.

Read our columnists’ take on this issue and share your opinion below.

The ground rules: As in an actual debate, the pro and con sides are assigned randomly as an exercise in critical thinking and analyzing problems from different perspectives.

Our debaters: Jim Dudley, a 32-year veteran of the San Francisco Police Department where he retired as deputy chief of the Patrol Bureau, and Chief Joel Shults, EdD, who retired as chief of police in Colorado.

Joel Shults: For the sake of future investigations that eventually will involve the whole array of violent crime, one could argue that the value of the potential identification through victim DNA outweighs privacy issues. I won’t say that the battle for privacy is already lost or that we don’t need to resist intrusion, but Americans cavalierly waive their rights to privacy very consistently. Few people take the time to make adjustments to their electronic devices to ensure privacy. Few people know or care how their automobiles leave more than tire tracks to reveal their driver’s whereabouts. Over 30 million individuals have submitted DNA samples out of genealogical curiosity. Admittedly there is a difference between commerce collecting identifying data and a government doing so, but those lines are increasingly blurred if they even still exist at all.

Jim Dudley: I understand your point here, Joel. I agree that DNA testing is important in policing and a valid way of connecting suspects to crime without any hint of bias or racial implications. DNA evidence has been so valuable, especially in helping to solve some heinous cold case homicides. In this case, however, the DNA sample was obtained from a sexual assault victim and there was an expectation of privacy that is presumed in such an investigation.

This particular case caused an uproar from this point alone. There was no intention to use DNA from victims of crime per se, but as part of a quality assurance test of the database of the Combined DNA Index System (CODIS) samples of DNA were uploaded. This included DNA from investigators and lab technicians, and yes, even victims. Once in the system, the property crime DNA was matched to the sexual assault victim. There is no evidence that any law enforcement crime lab that has been using DNA CODIS was intentionally using samples from victims of crime. Still, California State Senator Scott Weiner has introduced SB 1228, the Genetic Privacy for Sexual Assault Victims Act, to ensure this would not be permitted.

Like sanctuary city protections, it is the intent to allow crime victims to submit reports of crime and even submit DNA and fingerprints if necessary, without fear that they would be linked to crime as a suspect. The consequence of inclusion in CODIS may cause some victims to refuse to report a crime or cooperate with law enforcement officials.

Joel Shults: Slippery slope for certain, Jim. Not to be cynical, but you and I both know that victims and perpetrators often trade places. The data shows that perps and victims are often in a cycle of being crime victims, or perpetrators, and sometimes both. I guess what I’m saying is that both are a source of potential evidence.

If one thinks about all of the fingerprints on file in the IAFIS system, the equivalent fingerprint file of the CODIS DNA file, they certainly aren’t all from criminal suspects. I’ve never been arrested, but I have had to give fingerprints for military service, concealed carry application, school volunteer background check, and probably others I’ve forgotten. Should I object if that information is used to implicate me as a suspect in a crime? What if some diagnostic DNA was used to solve the rape that our San Francisco victim suffered? Must we close that door to potentially solving violent crime and cold cases?

Jim Dudley: There is no dispute that evidence is evidence. A database cannot be biased or subjective. The point that victims and the advocates are emphasizing is about how the evidence is procured. If, for example, a victim of a crime already had their DNA in a database and was found to be connected to another crime as the suspect, there shouldn’t be an issue. Your examples are fair.

With some estimates as low as only 20% of sexual assaults being reported, there shouldn’t be any other obstacles to discourage victims from reporting.

There are myriad ways for someone’s DNA to land in a database. Even relatives of suspects have yielded clues to solving crime, as was the case with the Golden State killer.

With so many ways of DNA cataloging available, collecting evidence from rape victims should be prohibited in order to help solve their case, apprehend rapists and prevent future victimizations.

Joel Shults: The low rate of victim reporting that you cite is disturbing, but since it is already so low it doesn’t appear that the use of victim DNA would make a huge difference in that number.

The ethical challenge of this issue may be easily defined as being “not fair” that a victim risks consequences from their criminal behavior by participating in the search for the violent criminals who perpetrated against them. But the overall fairness of concealing evidence that might catch – or exonerate – a suspect is at play as well.

I am very sympathetic to civil liberty issues, recognizing that fear is a primary motivator for giving up our freedom from government intrusion. Perhaps a disclosure that physical evidence collected during victim cooperation could be used against you (kind of a Miranda for physical evidence) might level the field. But we also know that if we’re rescuing a victim of domestic violence and discover a pile of cocaine on the coffee table, we don’t necessarily give the victim a get out of jail free card for other crimes we might detect during our investigation.

On balance, I can concede that discouraging victims from reporting for fear that they may be prosecuted for a crime using the very evidence collected to help them is a bad thing. But we also know that as homicides spike and solve rates hover around only 50%, the greater good of public safety might mean the scales of justice should be weighed in favor of using that evidence.

Jim Dudley: Understood, Joel, but in the particular instance of taking surreptitious DNA evidence from sex crimes victims, the legislature will have the last say in the matter. If passed, California Senate Bill 1228 will bar California police from uploading sexual assault victims’ DNA profiles into criminal databases and prohibit police from retaining victims’ DNA in a searchable database for any purpose other than identifying the perpetrator. The bill would protect survivors’ privacy and constitutional rights and encourage them to report sexual violence.

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