Legal questions mount amid San Francisco rape kit DNA case

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San Francisco District Attorney Chesa Boudin holds a briefing during a news conference in San Francisco, Tuesday, Feb. 15, 2022. Boudin's astonishing claim that forensic labs use victims' <a class=DNA of rape and sexual assault without their consent to investigate unrelated crimes and store DNA has indefinitely shocked prosecutors nationwide, as sexual assault victim groups decry the chilling effect it could have about people who want to report sexual assaults. (AP Photo/Olga R. Rodrigues)” title=”San Francisco District Attorney Chesa Boudin holds a briefing during a news conference in San Francisco, Tuesday, Feb. 15, 2022. Boudin’s astonishing claim that forensic labs use victims’ DNA of rape and sexual assault without their consent to investigate unrelated crimes and store DNA has indefinitely shocked prosecutors nationwide, as sexual assault victim groups decry the chilling effect it could have about people who want to report sexual assaults. (AP Photo/Olga R. Rodrigues)” loading=”lazy”/>

San Francisco District Attorney Chesa Boudin holds a briefing during a news conference in San Francisco, Tuesday, Feb. 15, 2022. Boudin’s astonishing claim that forensic labs use victims’ DNA of rape and sexual assault without their consent to investigate unrelated crimes and store DNA has indefinitely shocked prosecutors nationwide, as sexual assault victim groups decry the chilling effect it could have about people who want to report sexual assaults. (AP Photo/Olga R. Rodrigues)

PA

Every day, DNA is routed through local, state and federal databases to identify suspected criminals. A technological breakthrough that has enabled law enforcement to solve an unprecedented number of crimes, its use has simultaneously garnered praise as well as major privacy concerns.

But this week’s revelation that the San Francisco police crime lab used a sexual assault victim’s DNA against her in an unrelated property crime case – and the allegation that it did could be common practice in California – has caused a national outcry among law enforcement, legal experts, lawmakers and attorneys.

Police investigators allegedly used a sexual assault victim’s DNA, collected as part of a rape kit in 2016, to link her to a burglary in late 2021, according to District Attorney Chesa Boudin. The woman was initially faced with a property crime, but the charges have since been dropped.

Victim samples cannot be uploaded to state and federal DNA databases. But local data banks operate with far less regulation and oversight, if any, and it may be legal in California to use a victim’s DNA as investigators have done.

“It’s absolutely unethical, there’s no question in my mind that it’s unethical,” said former Salt Lake City police chief Chris Burbank, who is now deputy Chairman of Law Enforcement Strategy for the Center for Policing Equity. “The question is not ‘Can we do this?’ The question should always be ‘Should we do this?’

Boudin said he was told it was standard procedure, but he did not provide proof. San Francisco Police Chief Bill Scott said his department was investigating but did not respond to questions about whether it was a regular practice or what this investigation would investigate. If he finds his department is using victims’ DNA to investigate other crimes, he said he is committed to ending the practice.

Although the state Department of Justice does not oversee these local data banks, a statement clarifies the agency’s position. “Conclusion: DNA reference samples from victims should never be used as criminal evidence.”

Yet under California’s criminal code, crime labs can store and analyze DNA in local databases separate from highly regulated state and federal repositories. Supporters across the country said local databases help law enforcement resolve cases faster by avoiding the backlogs that plague state and federal databases.

Boudin said the use of rape victims’ DNA in unrelated investigations could be a violation of California’s Victims of Crime Bill of Rights, which states that victims of crime have the right “to have their property returned, to be fully informed of what is happening with their property, and to use it only for the purpose for which they have agreed to use it.”

He said that when collecting a DNA sample from sexual assault victims, the San Francisco Police Department uses a consent form that does not mention whether the DNA is stored indefinitely or used for further purposes. other purposes.

Local databases are much smaller, although some agencies collect samples from people who are never arrested or convicted of crimes. They are not subject to the same strict controls as federal and state collections, which typically require a conviction, arrest, or warrant before a sample is uploaded.

“These databases operate in the background with very little regulation and very little light,” said Jason Kreag, a law professor at the University of Arizona who has studied forensic DNA issues.

Just because the law doesn’t appear to specifically prohibit the practice of using a victim’s DNA against them, experts say it’s almost unfathomable that it was even contemplated – let alone carried out.

“Do we really need this written into law? Apparently, yes,” said Sara Katsanis, assistant research professor at Northwestern Feinberg School of Medicine and senior researcher of the Genetics and Justice Laboratory at Ann & Robert H. Lurie. Children’s. Chicago Hospital.

State Senator Scott Wiener, a Democrat from San Francisco, is working with attorneys and attorneys to scour state law to see where potential loopholes exist that would allow a victim’s DNA to be used in a another investigation. The senator said early indications point to the need to introduce additional legislation, which would likely happen in the first half of March.

“We need to protect this DNA from abuse,” he said. “We really need to shore that up and make sure we’re supporting survivors.”

Jorge Camacho, director of policy at Yale Law School’s Justice Collaboratory, said it might not be so simple. This particular case may seem clear against using the victim’s DNA, but future cases, such as a violent crime, might not.

Camacho said lawmakers will likely approach this issue in one of three ways: draw a clear line where crime labs can’t analyze victims’ DNA at all or only for specifically designated offenses such as homicide; propose a standard that a victim’s DNA can only be searched when the second interest warrants it; or take it to court and require law enforcement to seek a warrant to analyze the victim’s DNA after a judge considers the seriousness of the crime against how the sample was got.

Camille Cooper, vice president of public policy for the Rape, Abuse & Incest National Network, called on San Francisco to immediately stop the practice and urged lawmakers to make it illegal.

“Storing a survivor’s DNA in a database, or using it for any other purpose, is indefensible and will discourage them from seeking medical attention or reporting an assault,” Cooper said in a statement. “

Boudin’s revelation this week comes amid a growing rift between his office and the San Francisco Police Department. Their clash escalated this month after the start of a trial against Terrance Stangel, a former police officer charged with assault and battery for beating a man with a truncheon in 2019. It is believed to be the first case of excessive force against an on-duty San Francisco police officer to go to trial.

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Dazio reported from Los Angeles.

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