SAN FRANCISCO — San Francisco’s police chief says he's investigating claims by the district attorney that DNA collected from rape victims is being used to help identify them as possible crime suspects.
Although the accusations originated in California, legal experts and victims rights advocates in Oregon express concerns about the unintended consequences for other sexual assault victims.
The district attorney, Chesa Boudin, said Monday that he's learned the San Francisco police crime lab has tried to identify suspects through a database that includes DNA profiles from sex-assault victims.
Boudin says a woman was arrested recently for a property crime based on her years-old rape kit DNA. He says the practice could be unconstitutional and it could dissuade sex-assault victims from reporting crimes.
Tung Yin, a professor at Lewis & Clark Law School in Portland, gave his thoughts on the DA's comments.
"This is an example where we have a situation that hasn’t really been thought of, it isn’t particularly covered by a particular law," Yin said. "There is a victim who assists in gathering evidence against the perpetrator, and then turns out that the evidence is used against the victim for an unrelated crime."
He said while obtaining DNA is considered "something of a search for Fourth Amendment purposes," there is a Supreme Court case that says for people who've been arrested, obtaining DNA can be considered OK under the Fourth Amendment without a warrant.
"In some ways we say, well people's fingerprints are in the system, you get fingerprinted for different reasons that I can come back to be used in a criminal investigation. But I think there’s something particularly distasteful about being the victim of sexual assault, such a horrible, intimate crime, and then having the very evidence of that used for what seems to be a relatively minor type of non-personal injury crime."
In Portland, Multnomah County District Attorney Mike Schmidt issued a statement to KGW that said his office "does not and will not" use rape test kits to prosecute victims.
"Using evidence obtained in the aftermath of a sexual assault to charge the victim for another crime isn’t justice. It’s abuse... When a victim discloses an assault, our victim advocates and prosecutors have two goals: hold perpetrators accountable and help the victim to heal. Our office is committed to doing everything in our power to support victims, encourage reporting of assault, and pursue justice."
San Francisco's police chief Bill Scott says he's ordered an investigation into DA Boudin's claims and if the allegations are true, he'll end the practice.
The Sexual Assault Resource Center, based in Beaverton, sent this comment to KGW in regards to this case:
"With decades of experience working with people who have experienced sexual assault, our concern is that using the DNA collected during a Sexual Assault Forensic Exam for any purpose other than evidence collection that may aide in potential prosecution of that person’s sexual assault case, could be detrimental to those in our community who have experienced sexual violence.
"This practice could affect a person’s decision to seek a medical exam following a sexual assault at all, for those who don’t realize that they can access an exam without having DNA collected, and it could have a significant impact on a person’s decision to receive a Sexual Assault Forensic Exam specifically and/or report to law enforcement. This creates additional barriers to accessing justice and accountability through the criminal justice system and instils fear regarding how else one’s DNA may be used without their consent.
"Imagine doing one of the hardest things you’ve ever had to do in your life, to come forward and share that this has happened to you, and to have the result be that you find yourself in legal trouble. Many of us in the field understand that reducing barriers to reporting sexual assault often includes ensuring that people who have been participating in other activities at the time of the assault, for example drug use or underage drinking, or who are undocumented immigrants at the of assault, will not experience legal trouble as a result of reporting the sexual assault. It’s important that we continue to reduce the barriers to and potential consequences of reporting and honor the rights and needs of those who have experienced sexual assault during these processes."