Last week Bay Area Legal Aid was shocked and appalled to learn from multiple media sources – with confirmation from San Francisco District Attorney Chesa Boudin – that the San Francisco Police Department used DNA from a survivor’s sexual assault examination several years ago to allege her link to a recent property crime.
It is not yet clear whether this practice is limited to a single case or is more widespread. However, BayLegal agrees with survivors and their allies, advocates for constitutional rights, and our legal services colleagues: one time is too many. Any use and/or retention of survivor DNA in criminal suspect databases needs to stop immediately. Use and retention of survivor DNA evidence in this manner violates survivors’ constitutional rights to privacy, dignity, and freedom from unreasonable search and seizure. We agree with DA Boudin’s decision to drop the property crime case against the individual who was allegedly linked to the crime by her DNA. We also believe strongly that all survivors’ DNA must be expunged from criminal suspect databases, and the City must take all means necessary to provide relief to all survivors affected by this unlawful practice.
Sexual assault survivors already face serious barriers to placing trust and confidence in the criminal justice system. For a police department to maintain their DNA evidence in a criminal suspect database can only further erode this trust and lead to even fewer survivors coming forward. Any law enforcement use of data gathered outside criminal investigations for criminal investigative purposes is cause for serious concern. In this case, victims of crime voluntarily gave DNA evidence with the understanding that its purpose was to help prosecute those who assaulted them. Because no one giving this evidence was led to believe it could be used in later, unrelated criminal investigations, it was given in many cases without access to legal counsel or any warnings about constitutional rights against unreasonable search and seizure and self-incrimination. This is unlawful and unacceptable. Finally, retention of this data in criminal suspect databases is highly likely, given the extreme racial disparity in patterns of arrest and charging, to further exacerbate deep racial injustices in criminal prosecutions.
BayLegal hopes that the response to these revelations by SFPD and the City goes beyond simply dropping the ill-advised and likely unlawful prosecution. We hope to see a public apology to the individual affected along with all sexual assault survivors who have been examined in San Francisco, a full and transparent account of how widespread this practice has been, discipline and training, and a commitment with clear accountability to ban the use and/or retention of survivor DNA evidence in criminal suspect databases.