Rape victims have a new terrifying reason to be silent: Their DNA could be used against them

·3 min read

As if there weren't enough reasons to not come forward after a rape, sexual assault victims in California have a new reason – their DNA is being used against them in later criminal investigations. No, you didn't read that wrong.

California crime labs have turned DNA from a sexual assault into potential evidence grab bags for unrelated criminal investigations. The revelation is mind-boggling, bone-chilling, morally wrong and unconstitutional.

The scandal came to light when prosecutors found a report with a DNA sample collected from a woman during a 2016 rape investigation. The DNA report was among hundreds of pages of evidence in a separate felony property case against that same victim.

Women reluctant to come forward

There are lots of reasons why survivors of sexual assault don't file police reports. For starters, it's hard enough to get victims to consent to a rape kit. That's because the physical examination is an invasive procedure, after a horrific trauma, and can be re-traumatizing.

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San Francisco District Attorney Chesa Boudin spoke out against the San Francisco Police Department's practice of logging DNA evidence from rape kits into their crime database to use as evidence in other crimes.
San Francisco District Attorney Chesa Boudin spoke out against the San Francisco Police Department's practice of logging DNA evidence from rape kits into their crime database to use as evidence in other crimes.

Second, there is always the potential for character assassination. We saw this play out on a very public stage in 2018 during the confirmation hearings of Justice Brett Kavanaugh, who had been accused of serious sexual misconduct by Dr. Christine Blasey Ford. The same happened in 1991, with professor Anita Hill's allegations of sexual harassment by Justice Clarence Thomas. Both men were unimpeded in their professional ambitions, in spite of the allegations against them. Both women's reputations were dragged through the mud.

What Bill of Rights?

San Francisco District Attorney Chesa Boudin, who exposed the DNA practice this week, has come out against it. In a news release, his office revealed state crime labs' "attempts to identify crime suspects by searching a database of DNA evidence that contains DNA collected from rape and sexual assault victims."

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When Boudin found out about the origins of the DNA evidence, he dropped the charges against the woman, saying it was a violation of her Fourth Amendment right to be free from unreasonable search and seizure, as well as against the California Constitution. It is also a violation of her right to privacy.

As U.S Supreme Court Justice William Douglas wrote for the majority in the famous Griswold v. Connecticut, "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ... Various guarantees create zones of privacy."

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Justice Douglas goes on to reference the explicit personal protections in the First, Third, Fourth, Fifth and Ninth Amendments to show that there is an implied right to privacy in the Constitution. Surely that right to privacy encompasses a sexual assault survivor's constitutional right to be free from potential self-incrimination in a later crime, irrespective of guilt.

When will change come?

It is good that the practice has been exposed. It is also good that Boudin has come out against it. But it is far from enough. In one part of the country, we're punishing sexual assault survivors by turning evidence of their sexual assault into incriminating evidence for potential future crimes.

Meanwhile, in Southern states like Texas, Florida and Missouri, women's bodies are treated like vessels by attempting to block abortion care. These are just the most recent examples of how America's watered-down Me Too movement has barely scratched the surface of the misogyny in this country.

In the spirit of my favorite Slovenian philosopher, Slavoj Zizek, "meaningful change will take nothing less than a revolution."

Carli Pierson is an attorney, former professor of human rights, writer and member of USA TODAY's Editorial Board. You can follow her on Twitter: @CarliPiersonEsq

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This article originally appeared on USA TODAY: San Francisco DA's admission about rape victims' DNA is really bad.