Schiff Wants FBI to Investigate Improper Use of DNA of Sexual Assault Victims in SF

Adam Schiff – Photo by Drew Angerer/Getty Images

By David M. Greenwald
Executive Editor

Washington, DC – A week ago, San Francisco DA Chesa Boudin alleged that the San Francisco PD crime lab had been uploading DNA from sexual assault victims to a database they use to identify suspects in other crimes—a process that could both unacceptably violate the privacy of sexual assault victims and also disincentivize survivors of sexual assault from coming forward.

On Tuesday leading Democratic Representative Adam Schiff asked FBI Director Christopher Wray to examine the “deeply concerning reports.

“While some details of this reported incident remain unclear, they merit your attention and action, because even the perception that law enforcement agencies are searching DNA profiles collected from sexual assault victims could have a chilling effect on willingness to report sexual assaults,” Schiff wrote.

According to a release from Schiff’s office, the FBI administers the Combined DNA Index System (CODIS), and “the agency is uniquely positioned to prevent any federal, state, or local law enforcement agency from improperly uploading DNA profiles obtained from crime victims.”

Schiff also indicated he will explore legislative remedies to this potential violation of law.

“Though there are still many unanswered questions about the extent of this practice, the fact it may have occurred at all is deeply disturbing. I fear it will have a chilling effect on sexual assault reporting.…” wrote Schiff. “Any perception among victims that law enforcement views them as a potential offender could further reduce already low rates of reporting of sexual assaults.”

According to the Department of Justice’s 2020 Criminal Victimization Report, more than 300,000 individuals were raped or sexually assaulted in 2020. However, less than 23 percent of those assaults were reported to police, down nearly 34 percent from 2019.

Schiff urged Wray to investigate the reporting and asked the FBI to report back on the following questions:

  • Do current federal laws and regulations permit law enforcement agencies to upload DNA profiles obtained from crime victims to the National DNA Index System’s offender database?
  • If so, what is the extent of this practice, and do you plan to prohibit it and expunge any profiles uploaded?
  • Some states and localities maintain DNA databases separate from the NDIS. Does the FBI have the authority to prohibit the use of CODIS to hold samples obtained from crime victims in an offender or arrestee database?
  • Will you seek to communicate to state and local law enforcement agencies why holding a DNA profile from a crime victim in this way, particularly a sexual assault victim, will have a chilling effect on reporting of rapes and sexual assaults?

The San Francisco DA’s office did not offer further comment on Tuesday.

Boudin’s spokesperson Rachel Marshall did tweet, “So glad to see leaders like @RepAdamSchiff responding urgently to this terrible practice exposed by DA @chesaboudin last week. We’ll keep fighting to protect the privacy of sexual assault survivors and to remove barriers to reporting rape.”

At a press conference last week, Supervisor Hillary Rosen pointed out, “Remember, you are just violated in the most brutal and intimate way. And if you decide to come forward and report that crime, you have to go to a hospital and have an invasive medical examination at the worst moments of your life, when all you want to do is take a shower and get any presence of your attacker off your body.

“But instead you have to preserve the evidence. You have to go to the hospital, you have to get a rape kit, then you have to be investigated by the police and you have to potentially stand trial and tell your story to the public. It is so burdensome to report rape. It is so hard that it doesn’t happen very often.”

For his part, Boudin condemned the practice.

“We, we have very grave concerns about the legality of this practice, particularly under Marsy’s law, which is the California crime victims bill,” said Boudin.

As Boudin noted, rape and sexual assault are “some of the most serious crimes that we see.  They’re also some of the most underreported crimes.  They’re also some of the crimes that are historically the hardest to prosecute precisely because of the kind of barriers that we’re here to talk about today.”

Boudin pointed out that “thousands of rape kits have gone untested altogether” in San Francisco and elsewhere.  And this practice means that women “who came forward to courageously cooperate with law enforcement to submit their body to an invasive procedure in one of their most vulnerable moments” have had their trust “abused,” “not just by the San Francisco police department, crime lab, but we have reason to believe by labs all across the state of California in a practice that has been described as routine.”

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 Comments

  1. Chris Griffith

    If we’d had a database entry of the unibomber, we might have saved the lives of a lot of people by catching him earlier. But we didn’t. This WILL help solve crimes.

     

    1. David Greenwald

      It will not, because victims now will not come forward to do rape kits, so it will actually make it harder to catch rapists and have no good effect on other crime.

      1. Keith Olson

        It will not, because victims now will not come forward to do rape kits

        ‘Some’ victims might not come forward who may have committed a crime or thinks they might someday commit a crime and don’t wan’t their DNA on file.

        There,  I FIFY.

        1. David Greenwald

          The people who actually work in this field, disagree with you.

          The disclosure of the crime lab’s practice of searching sexual assault victim DNA profiles set fire to groups across the state that have worked for years to improve the chronically low levels of sexual assault reporting to law enforcement.

          Legal experts questioned whether the usage was a HIPAA violation, unlawful search and seizure, or simply an end-around providing such victims-turned-suspects with constitutional rights that would otherwise be afforded them.

          “Good lord,” said retired San Diego Police detective Carlton Hershman, who called the disclosure a “nuclear bomb.” He investigated more than 1,300 sexual assault cases in his career.

          “That’s just inappropriate, in my opinion. You can’t take just a swath of people and throw them in the databank,” Hershman said. “I don’t care if you’re a career criminal, I don’t care if you’re a gang member and you’ve been shot. Your DNA should not be dumped in with suspects. That’s not how we operate.”

          Link

        2. David Greenwald

          Also, you act like only people who commit crimes have to worry. There are false DNA hits as well. Given what I’ve now learned, I would not give my DNA voluntarily under any circumstance, there is no control over how it would be used. Just like I wouldn’t submit to a drug test.

        3. Ron Oertel

          I would not give my DNA voluntarily under any circumstance, there is no control over how it would be used.

          Nor do you support cameras, unless they’re exclusively focused on what police do.  And even then, only AFTER someone breaks a law and then resists arrest.

          In fact, it seems like you support the elimination of every tool there is, to deter crime.

          I shudder to think of what would happen if you had sole authority to make such decisions. Yikes.

  2. Chris Griffith

    I’m not sure how this is invading anyone’s privacy except actual criminals.This seems like a totally legitimate way to use technology But maybe I’m not thinking about something

    What is the way to abuse this?

     

    1. David Greenwald

      Because they are submitting the DNA in order to exclude theirs from the sample they submitted in order to isolate the DNA from the perpetrator. They have not been asked to sign any waiver that allows the government to store it in a database in order to check for future crimes. Therefore it is unconstitutional. Moreover it will discourage people from coming forward if they know the information can and will be used against them in the future. Right now as the article notes only a tiny percentage of rape victims submit to rape kits, that number will drop.

      1. Bill Marshall

        if they know the information can and will be used against them in the future. 

        Chris asks a good question… you dissemble, David… if I commit or am not suspected of committing a crime in the future, how can it be used against me?  If someone was raped, and previously murdered someone, or does in the future, is rape a legitimate defense against an unrelated murder?

        DNA evidence has degrees of usefulness… some is only good for ‘exclusion’… often it does not have enough ‘matching’ to lead to prosecution, much less conviction…

        I too, as I posted previously, have concerns about the ‘chilling effect’ it may have as to true victims (as opposed to past or future ‘perps’) coming forward… it is a ‘mixed bag’ and I am inclined to err on the side of having a victim’s DNA excluded from prosecutional use against the victim…

        If someone is raped, then commits (or has committed) one or more heinous crimes, and the DNA leads to their prosecution/conviction, I am not sympathetic…  cry me a river…

        That said, the disclosure of ‘under what circumstances’ was the DNA obtained should HAVE to be disclosed under any future use.  ‘Admissibility’, and ‘weight’ should be viewed in light of that…

        1. David Greenwald

          The issue is the government’s right to use data collected for one purpose for another purpose without getting a waiver. It’s not that if someone is raped, they don’t get held accountable for a crime they commit, it’s that the government doesn’t have the right to use DNA collected for one purpose for another without an admonishment and waiver.

        2. Bill Marshall

          David… have you ever been fingerprinted for a job?  Is that unconstitutional?  How might that fingerprint record be used?

          Constitutionality is the weakest of your arguments on this issue… the strongest (my opinion) argument is the chilling effect it may have on victims of crime coming forward, in an effort to apprehend/deal with the miscreant.

          Again, you dissemble… if a rape victim does a ‘Sandy Hook’, escapes, and a suspect is apprehended, should they get a pass if they refuse a DNA sample while in custody, and rely on a constitutional protection where their rape kit cannot be used to link them to their crime?  Really?  Guess if they were fingerprinted for a job 10 years earlier, that should be excluded as well, by your apparent metrics of constitutional rights.

          Sometimes it appears you think crime, and addressing it, is a “game”… including how DNA is obtained… guess you believe a recent serial rapist/murder case should be thrown out because the perp had his garbage checked, under the technicality that it was placed on a public street…

          1. David Greenwald

            Are you aware that in California for example, there are strict limitation to how biometric information can be used.

            California’s California Consumer Privacy Act (CCPA), regulates biometric data by including it in the definition of personal information. CCPA defines biometric data very broadly to include “physiological, biological or behavioral characteristics, including … DNA[,] that can be used … to establish individual identity,” including “imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.”

            You’re actually correct on your second point – constitutionality. That is why Supervisor Ronen wants to introduce a local law and now Schiff wants to create a national law on the use of rape kit DNA.

        3. Bill Marshall

          There is so much that the ‘founders’ had no concept of when the Constitution was written… 1st amendment:  no concept of internet, social media; 2nd amendment: no concept of AR-15’s and serious ammo clips… 5th amendment:  no concept of fingerprint or DNA identification… could cite many, many, others…

          1. David Greenwald

            Scalia wrote, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.”

  3. Chris Griffith

    Every single person on this board would be clamoring for this kind of DNA collection if someone close to them was the victim of a severe crime and the evidence was available
    Even Adam.Schiff…
     

  4. Chris Griffith

    I can categorically say you are wrong.

     

    Plus you don’t get it, if you do this, you cook the golden goose because no one will submit their DNA.

    Gee how about the armed forces they collect DNA  the immigration department they collect  DNA how about all them people that love doing genealogy they really love DNA and who can forget the prison system they love collecting DNA also.

    The only people that don’t want DNA collected are either politicians I put them in the classifications of either criminals or future criminals and of course the ones that are incarcerated they don’t want their dna collected either for obvious reasons.

    We need DNA collection for everything from national disasters to wars.

     

     

     

    1. David Greenwald

       The only people that don’t want DNA collected are either politicians I put them in the classifications of either criminals or future criminals and of course the ones that are incarcerated they don’t want their dna collected either for obvious reasons.”

      That’s not true either.  Victims advocates are very concerned that this will discourage women coming forward for DNA swabs.  As it is, less than one in four do.  You’ve still not addressed this point.

      1. Ron Oertel

        If everyone was required to submit their DNA at some point in their lives (and the government maintained such records), you’d have no point.

        Now, whether or not that’s a good idea is a different issue.

        As it is, they’re attempting to get everyone vaccinated, using coercive methods.

         

  5. Ron Oertel

    I would say that (assuming that the report is accurate, and is limited to San Francisco), this issue is one heck of a tool for Boudin to use in his re-election.  Much more effective than anything else he’s tried, so far.

    Might even save him.  Especially when political allies such as Schiff become involved.

    If I was a supporter, I’d play it up for all that it was worth.

     

  6. Ron Oertel

    Ultimately (and depending upon the seriousness of the crime), your relatives’ DNA is going to increasingly be used to catch you – even if you haven’t officially provided yours.

    See Golden State Killer.

    “Sorry, uncle”.

    Sincerely – “your nephew” (or whoever submitted that).

    And thank you to the police for solving that. Too bad the technology didn’t exist years ago.

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