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Police Search of Rape Victims’ DNA Tests Meaning of Consent

March 16, 2022, 1:17 PM

Happy Wednesday and welcome back to another edition of Opening Argument, a reported column where I dig into tricky legal questions and unpack issues dividing appellate courts. Today, a look at DNA evidence and when it’s unlawful for police to store and search it.

Rape victims agree to have their bodies invaded for a second time to help catch their assailant—not to make it easier for police to arrest them later in life.

The San Francisco Police Department’s crime lab, however, has been storing the DNA collected from victims of sexual assault in a private database and searching through it years later to do just that—identify them as possible suspects in unrelated investigations.

The practice, uncovered in a property crime case that San Francisco District Attorney Chesa Boudin (D) has since dismissed, has raised questions about how DNA evidence is collected and stored, and when it can lawfully be searched without your consent. Though using a rape victim’s DNA in that way provoked outrage, it’s not necessarily an unlawful search and seizure under the Constitution, lawyers warn. The situation has brought new attention to what it means when victims give police consent to use their DNA to aid investigations, and some California lawmakers say the rules need to be updated to protect already vulnerable victims.

Police have access to local, state, and federal criminal DNA databases in a software system created by the FBI, but victims’ DNA can’t be stored in that system. San Francisco’s lab instead stored it in a separate, private database set up primarily for quality control. One that houses the DNA of people who work at the crime lab in order to rule them out if evidence is ever contaminated.

Andrea Roth, a professor at Berkeley Law who’s an expert in criminal law and evidence, said other local crime labs have similar databases.

“We’ve known for years that police departments have these secret databases where they put a bunch of catch-all stuff,” she said, “like samples that they get surreptitiously from suspects, victim elimination samples, autopsy samples.” Basically all the DNA police collect that’s not authorized by law to go in the system of databases run by the FBI.

The woman who was arrested for a property crime based on DNA she provided in a rape kit six years prior is now planning to sue the city for violating her Fourth Amendment right against unreasonable police searches and seizures.

Her attorney Adanté Pointer, co-founder of Pointer and Buelna LLP in Oakland, Calif., said his client never consented to having her DNA kept in perpetuity or used to investigate unrelated crimes.

But was that unlawful?

The California Department of Justice told local law enforcement agencies in a March 1 bulletin that it’s not necessary to include victims’ DNA samples in a quality control database like this and doing so could violate the Fourth Amendment if “those victim reference samples are utilized for any purpose that exceeds the scope of consent.”

Boudin’s Chief of Staff Kate Chatfield said there’s nothing in California’s consent form for a rape kit that indicates your DNA could be used against you in another case or that police will search it in the future.

The form says only the patient understands “the report of the examination and any evidence obtained will be released to law enforcement authorities.”

That’s where it can get tricky.

If consent forms use overly broad language that says the DNA can be used by law enforcement, some courts may not agree it’s a Fourth Amendment violation to search it for an unrelated investigation, Roth said.

Tung Yin, a professor of law at Lewis & Clark Law School, who teaches a course on criminal procedure and evidence, said consent in the context of a criminal procedure is seen as someone effectively waiving their Fourth Amendment rights.

“In the criminal context, it’s just simply, ‘Can I invade your expectations of privacy,’ and if you say yes, then the police get to do the things they do,” he said.

In a statement, San Francisco Chief of Police William Scott said he’s committed to ending the practice if it’s true that DNA collected from a rape or sexual assault victim has been used by the San Francisco Police Department to identify and apprehend that person as a suspect in another crime.

“I am informed that our existing DNA collection policies have been legally vetted and conform with state and national forensic standards,” he said. “However, there are many important principles for which the San Francisco Police Department stands that go beyond state and national standards.”

Scott said the department will be reviewing its DNA collection practices and policies.

Boudin, state Sen. Scott Wiener (D), and Assemblymember Phil Ting (D) have already introduced legislation to change the law and keep California police from storing rape victims’ DNA in a searchable database.

It seems unlikely the practice would have elicited the same outrage if the woman charged had committed a violent crime or been a long hunted serial killer. In those situations it’s almost natural to think law enforcement should be using every tool at their disposal to crack the case.

But legal scholars say there’s a reason we don’t have cameras watching our every move and our phones aren’t wired tapped without court orders.

“All these are limitations on law enforcement that enable some crime to get away,” Yin said.

And that, he said, is because limiting the crime rate to zero isn’t worth the toll it would take on our freedoms.

Know of an issue, dispute, or case worth digging into? Email me at lwheeler@bloombergindustry.com

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com