When a medical professional performs a forensic examination of a rape victim, in addition to interviewing the person and treating any injuries, they will collect biological evidence including bodily fluids, skin cells and hair. This can include DNA samples from the victim, not just the perpetrator. According to District Attorney Chesa Boudin, San Francisco Police Departments’ crime lab has been entering victims’ DNA into a database law enforcement uses to identify possible suspects. In the latest in a series of disagreements between the DA and the police, Boudin has condemned the practice because it could deter rape victims from reporting the crime to law enforcement. “There are few crimes more serious [than sexual assault], and we need to do everything we can to eliminate barriers to reporting and to accountability,” Boudin tells Rolling Stone. “And this policy undermines the trust that we need victims to have in the work we do.”
Boudin learned about the apparent practice last week in the context of one woman, whose DNA was collected in 2016 ago during a rape exam as part of a domestic violence and sexual abuse case. He says the San Francisco Police Department then used her DNA to link her to a recent felony Boudin describes only as a “property crime.” He says his office discovered what had happened during the course of litigating the crime. “It was buried in a rather opaque manner in a SFPD forensic crime lab report,” he says. “We cross-referenced the incident report referenced in the crime lab. We looked at the arrest warrant details and we realize to our horror what had happened.” (The SFPD has not confirmed the practice, but say they are reviewing the matter. The case has since been dropped.)
According to Boudin, SFPD maintains a local database of DNA for so-called quality assurance. “It’s maintained in theory for the purpose of ensuring that there’s no contamination from other samples that have moved through the lab,” Boudin says. This database has no connection to the federal forensic database CODIS, to which it is illegal to upload a rape victim’s DNA. Boudin says the head of the police crime lab told him their software is programmed to run suspect searches of the quality assurance database, as a matter of police policy.
But that practice may violate victims’ Fourth Amendment rights against unreasonable searches and seizures, as well as potentially violating California’s Victims’ Bill of Rights, which includes a right to privacy. “It’s illegal,” Boudin says.
DNA technology as a forensic tool has made huge strides in recent years, particularly in the use of genetic genealogy to identify suspects through the mapping of family trees with the help of DNA of a distant relative who may not even know the suspect. Most notably, familial DNA helped arrest the Golden State Killer, Joseph James DeAngelo, in 2018, when authorities identified the DNA of a distant relative of DeAngelo’s through an open-source database. But the practice has raised concerns about privacy among users, who may not know they’re signing up to potentially join future criminal investigations when they give their DNA to a company to learn about their family history.
It’s concerning, therefore, that the same thing could happen to people who give their DNA to law enforcement when they report a sexual assault. Sexual assaults are notoriously underreported crimes both because of the trauma of reliving the assault and for fear that accusers won’t be believed, experts say. Even when a victim does undergo an invasive rape examination and files a police report, oftentimes the rape kit does not get processed. There is a national backlog of an estimated hundreds of thousands untested rape kits languishing in storage. “It is shocking that during the time many rape kits were going untested in San Francisco, those kits that were being tested resulted in the DNA of rape victims being saved for future, unrelated investigations,” a press release from Boudin’s office read.
Maureen Curtis, vice president of criminal justice programs at Safe Horizon, which offers resources to victims of crimes, says it would be “outrageous” for a police crime lab to use DNA collected during rape exams this way. “Survivors need to feel safe in coming to the police to report their victimization if they decide that that is the best option for them,” she says. “This could prevent even more survivors from coming forward because they were afraid that their DNA could be used in this way or other ways. I mean, who’s to say that if they’re using it this way, they’re not using it other ways?”
The San Francisco Police department has not confirmed the practice of searching DNA samples of rape victims as possible suspects but Chief William Scott says he’s reviewing the matter. Scott released a statement Monday saying the department’s policies for collecting DNA have been legally vetted and claiming that it’s possible officers identified the suspect in question through a “non-victim DNA database.” He added that he’s committed to ending the practice Boudin refers to — if it’s happening. “We must never create disincentives for crime victims to cooperate with police,” Scott said in the statement. “Whatever disagreements District Attorney Boudin and I may have, we agree that this issue needs to be addressed. At the end of the day, our respective departments exist to do justice for victims of crime. The last thing we should ever do is discourage their cooperation with us to accomplish that.”
A spokesperson for the SFPD said they hoped they’d have more information to share soon about the case. “The chief is committed to ensuring that no practice or policy in this department ever discourages victims from cooperating with police and prosecutors,” the spokesperson said.