The woman whose DNA from a sexual assault kit was used by San Francisco police to arrest her in an unrelated property crime six years later plans to sue the city, her attorney said Thursday, March 10. Three days earlier, San Francisco District Attorney Chesa Boudin and California State Senator Scott Wiener announced legislation to ensure this invasion of privacy never occurs again.
In February, the San Francisco Police brought a case to Boudin in which the agency used DNA from a sexual assault kit to implicate the victim in an unrelated property crime six years later. Boudin not only refused to try the case but also quickly denounced the practice of using rape and sexual assault victims’ DNA to attempt to incriminate them. The DA called for an immediate stop to the practice and suggested he would address the issue in legislation, which he has with the newly proposed Senate Bill 1228: Genetic Privacy for Sexual Assault Victims.
Even so, the attorney for the woman at the center of the lawsuit, who is not being named, said she “has filed a notice of a possible federal lawsuit because she feels betrayed by police officers who broke her trust and violated her rights,” according to the Associated Press (AP).
“Victims of sexual assault consent to their DNA collection in order to apprehend the perpetrator, not so that their DNA will be retained in a local law enforcement database permanently to be searched years later,” said Boudin.
When the case was referred to Boudin in February, the San Francisco Police crime lab called the use of sexual assault kit DNA database—which includes children—“standard practice.”
Since then, as reported by the Associated Press, San Francisco Police Chief Bill Scott says he’s discovered 17 crime victim profiles, 11 of them from rape kits, that were matched using a crime victims database during unrelated investigations. The police chief said he believes the only arrest made from the database is of the woman who is planning to sue the city.
The crime lab stopped leveraging the crime victims' database shortly after receiving the complaint from Boudin. And now, if Senate Bill 1228 is passed, it will be illegal for any crime lab in California to do so in the future.
Senate Bill 1228: Genetic Privacy for Sexual Assault Victims
SB 1228 would prohibit law enforcement from retaining the DNA profile of sexual assault survivors in a searchable database that could be searched for reasons unrelated to the sexual assault. The profile would only be lawfully allowed for use in identifying the perpetrator of the sexual assault.
Federal law already prohibits the inclusion of victims’ DNA in CODIS; however, there is no corresponding California state law. This legislation would remedy that and even build upon it.
In sexual assault cases, often the DNA of people close to the victim, such as a roommate or consensual partner, is also collected in order to eliminate them as suspects. SB 1228 specifically prohibits law enforcement from storing and using the DNA of survivors’ close contacts in unrelated investigations, as well.
“Victims of sexual assault should be encouraged and supported in coming forward to undergo sexual assault examinations to identify their perpetrator. Instead, the practice by a police crime lab that my office exposed treats victims like criminals. It not only violates their privacy, but it dissuades victims from reporting sexual violence—which makes us all less safe,” said Boudin.
Sexual assault is significantly under-reported, with less than a quarter of sexual assault survivors reporting the crime to the police. Of those survivors who do report, only a small percentage undergo the highly invasive process of sexual assault testing. Additionally, a crime victims database specific to sexual assault victims disproportionally impacts marginalized communities.
Research shows that Black women are disproportionately impacted by sexual violence and are particularly reluctant to report sexual violence to the police. Members of the LGBTQIA community are also disproportionately impacted by sexual assault and face additional barriers to reporting these crimes.
SB 1228 would also instruct the Committee on Revision of the Penal Code to study whether additional steps are needed to protect the privacy of Californians who have submitted DNA samples to law enforcement and to determine whether a forensic oversight board is needed. Forensic oversight boards exist in other states, including Massachusetts, New York, and Texas.