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Legal Issues Mount Amid San Francisco Rape Kit DNA Case

SAN FRANCISCO (AP) — 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.

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 a law? Apparently, yes,” said Sara Katsanis, research assistant professor at Northwestern Feinberg School of Medicine and senior investigator in the Genetics and Justice Laboratory at Ann & Robert H. Lurie Children’s Hospital in Chicago.

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 are likely to approach this in one of three ways: draw a clear line where crime labs can’t test 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 have law enforcement seek a warrant to analyze the victim’s DNA after a judge considers the seriousness of the crime versus how the sample was obtained.

“As easy as a seemingly loophole it may be to close, reality can demonstrate that it is much more difficult,” he said.

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.

“Survivors undergoing rape kit exams have consented to the collection of their DNA for a very specific purpose: to catch the person who raped them,” Cooper said in a statement. “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.”

Dazio reported from Los Angeles.

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