By David M. Greenwald
San Francisco, CA – Last February embattled San Francisco DA Chesa Boudin got national attention when he announced that the San Francisco Police had used rape kit DNA samples to tie a rape victim to a crime years later.
On Monday, Oakland based Civil Rights Attorney Adante Pointer announced the unidentified woman would be suing the San Francisco Police Department—the city and county of San Francisco are the named defendants.
At a press conference, Pointer said, “Jane Doe is a person. She is a woman. She is a human who deserves all the creed and credit of anyone in our society, as it relates to their civil rights, being protected safeguarded and kept from being violated in such an egregious way, in such an overreach by our government by way of using something that is as sacred as the essence of our being, our DNA against her, her DNA was weaponized against her in furtherance of the government’s goal of suppressing law.”
He added, “What is most important here—and we want everyone not to lose focus on why this lawsuit was filed—is because Jane Doe was a victim.”
He said, “She found herself in the most precarious and scary situation where big brother, our government used something that she gave to them, her DNA in a moment of need, against her.”
Pointer also put this story into perspective, noting that “unfortunately it’s the story of countless other victims, countless other people who relied upon the San Francisco Police Department and the city and county of San Francisco to do the right thing when they were in a time of need. And for Jane Doe, she was a survivor of a sexual assault.”
Moreover, Pointer added, “What we know the statistics tell us is that sexual assaults are under reported. And when I say they’re under reported, I mean to say that there are statistics that tell us that about a … at least 80% of all sexual assaults are not reported to law enforcement.”
He said, “The last thing a survivor is thinking is that this will one day come back and be used against me for something that is wholly unrelated to the basis of why I sought protection from law enforcement.”
Though the charge against the woman was dropped, the incident revealed the San Francisco Police Department’s practice of placing crime victims’ DNA into a permanent database containing the DNA of rapists and thousands of other suspects.
Investigators would run victims’ DNA through their system looking for matches every time they searched for suspects who left genetic material at unrelated crime scenes.
The case has raised questions about how widely the practice is implemented in California and across the country.
“This unethical use of DNA samples violates crime victims’ federally guaranteed Fourth Amendment rights against unlawful search and seizure. This is a clear example of government overreach,” said Pointer.
He added, “This practice creates distrust in the public and heightens the harm done to sexual assault victims, who in many instances already fear going to police.”
They announced on Monday that the lawsuit was filed under the alias of Jane Doe to protect the woman, who is the victim of sexual assault. Her face was obscured when she spoke with a San Francisco news station earlier this year, saying she is traumatized and now has little trust in police after discovering her DNA was being used in criminal investigations.
“I didn’t know that it would be used against me,” she said. “I just feel violated again.”
In 2016, Doe provided a DNA sample to the San Francisco Police Department for its investigation into her sexual assault. She never consented for it to be used for any other investigative purpose. The state’s official patient consent form for collecting samples from victims of sex crimes does not include any language granting permission for a victim’s DNA to be used for unrelated, subsequent investigations.
Nevertheless, SFPD kept Doe’s DNA in its database for more than six years. “During this time, the crime lab routinely ran crime scene evidence through this database that included Plaintiff’s DNA without ever attempting to get her consent or anyone else’s consent,” the lawsuit states. “Her DNA was likely tested in thousands of criminal investigations, though the police had absolutely no reason to believe that she was involved in any of the incidents.”
Procedures for the federal Combined DNA Index System do not allow police agencies to upload victim samples into the national database, which is used to match genetic samples collected from crime scenes to those of people convicted of or arrested for crimes.
But local police departments are not prohibited from operating their own databases, and until Jane Doe’s case came to light, there was little limitation or oversight on how those databases are being used.
Last February, former SF DA Chesa Boudin held a press conference announcing that he had learned a law enforcement database with DNA collected from sexual assault victims is searched and used to identify possible suspects.
“We were shocked at this practice,” Boudin explained, “We only learned of it accidentally, coincidentally, because of a case that we were prosecuting against a woman who had had the courage to come forward and cooperate in a case where she had been victimized years earlier, (and) we immediately took action.”
“Rapes and sexual assault are violent, dehumanizing, and traumatic. I am disturbed that victims who have the courage to undergo an invasive examination to help identify their perpetrators are being treated like criminals rather than supported as crime victims,” said Boudin.
He added, “We should encourage survivors to come forward—not collect evidence to use against them in the future. This practice treats victims like evidence, not human beings. This is legally and ethically wrong. My office is demanding that this practice end immediately, and is encouraging local and state legislators to introduce legislation to end this practice in California. We remain committed to doing everything in our power to support survivors of sexual violence.”
SB 1228 was sponsored by Senator Scott Wiener who represents San Francisco and would prohibit law enforcement from retaining the DNA profiles of sexual assault survivors in a searchable database that could be searched for reasons entirely unrelated to the sexual assault.
“Sexual assault is among the most traumatic events that any person can ever experience. And we must do everything in our power to support and protect survivors who make the brave decision to come forward,” Senator Scott Wiener, the author of the bill, said during a press conference at the Capitol in April.
Senator Wiener said, “It is one more barrier and one more reason for sexual assault survivors not to come forward. And we are all less safe as a result. We need to do everything in our power to encourage survivors to come forward and to make clear that we support them and that we’ll protect them.”
The Electronic Frontier Foundation has reported that “rogue” DNA databases were created with DNA collected from people in Orange County, California; in San Diego; and in New York. In New Jersey, a man was arrested after his baby’s DNA was matched to blood found at a crime scene 25 years ago—after police used a subpoena to obtain a DNA sample collected under a state program to draw blood from every newborn for mandatory disease screenings, according to a lawsuit filed in July.
“This practice must be stopped. This is government overreach of the highest order, using the most unique and personal thing we have—our genetic code—without our knowledge to try and connect us to crime,” Pointer said.