Wednesday Writs: DNA, Databases, & Incriminating Sexual Assault Victims

Sexual Assault Poster with Ribbons – Vassar College – Poughkeepsie – New York – USA. Photo by Adam Jones from Kelowna, BC, Canada, CC BY-SA 2.0 , via Wikimedia Commons

WW 1: “Why didn’t they report it?” say the skeptics when a person is finally brave enough to disclose they were raped, sometimes years later. And there is a very long list of “whys”. Because they might not be believed. Because they fear retaliation. Because they are scared to face their rapist. Because they can’t stand the thought of being touched and intimately examined after what their bodies have gone through. Because they don’t want to go through the rigors of a trial. Because they want to forget it and move on. Because their DNA might be put into a database and used to charge them with a crime someday.

What?

Yes, this is apparently a thing that is happening in San Francisco, and who knows where else:

San Francisco’s district attorney said Monday that police used a database with DNA collected from victims of rape and sexual assault to connect some of them to crimes.

Dist. Atty. Chesa Boudin said the San Francisco Police Department crime lab had been using the database to “attempt to subsequently incriminate” victims of rape and sexual assault, a practice he called “legally and ethically wrong.”

To be transparent, as a person with an interest in true crime, watching the perpetrators of decades-old murders fall like dominos at the hands of DNA technology is very satisfying. I’ve written about this multiple times here at Ordinary Times, and fully admit that I love to imagine these most heinous perpetrators, elderly now and long having believed they’d gotten away with it, sitting in their homes shaking in fear, awaiting The Knock at the door.

Just this week, Pennsylvania State Police announced they’d solved the murder of 10-year-old Marise Chivarella, raped and strangled nearly 60 years ago. The perpetrator died over 40 years ago and unfortunately won’t get his earthly justice, but Marise’s surviving siblings take some solace in knowing the truth.

However, with the use of DNA comes controversy and ethical questions, especially when the criminal themselves has not volunteered a sample to the databases used by law enforcement (such as when familial DNA is used, as in the Chivarella case and, more famously, the Golden State Killer.) Many people question the constitutionality and the real privacy concerns raised, while others think it is fair game and worth the cost if it identifies society’s monsters.

No matter where you fall in that debate, this practice by police in San Francisco should anger you. Maybe you think, “nah, it’s fine; just don’t do crimes.” But consider that mere presence of one’s DNA at a crime scene is not definitive proof of culpability. You leave pieces of yourself everywhere you go; do you want to go to jail for burglary because your hair was found at a place you visited that was subsequently burgled? Note that not every crime in which DNA is used is as serious as murder or rape; the woman in the San Francisco story was implicated in a property crime.

If you really want rapists off the streets, you should want to make reporting their crimes a victim-friendly process. It is difficult to ease the psychological trauma the process will have on a victim, no matter how sensitive the system may try to be. But assuring them that their cooperation will not later result in their own prosecution seems to be a fair concession. Federal law already prohibits entering victim DNA into CODIS (Combined DNA Index System), the database used for identifying suspects in criminal cases. But local jurisdictions like San Francisco can keep their own databases, to which the federal law does not apply. Nothing stops them from entering any and all DNA they obtain into their systems “just in case”. Like so many other issues, this one must be tackled at a local level.

WW 2: Pending at the Florida Supreme Court is the applicability of the state’s version of Marsy’s Law, a codified set of victim’s rights, to police officers in excessive force cases. “Marsy’s Law” protects an alleged victim’s identity. In Florida, two police officers involved in fatal shootings claim they were victims of aggravated assault and as such, their identities cannot be released to the public. The officers sued the City of Tallahassee and lost but an appellate court found in the officer’s favor. This week, the Volusia County Sheriff received permission to file an amicus brief, in which he will argue on the side of disclosure, citing the need for transparency and avoiding further erosion of public trust. Pinellas County’s sheriff made a similar announcement last week.

WW 3: Gun manufacturer Remington will pay $73 million to families of 9 Sandy Hook shooting victims in a settlement announced this week, just over 9 years after the tragedy:

In their lawsuit against Remington, which has since filed for bankruptcy, families of the victims argued that the gun maker irresponsibly marketed the weapon to at-risk young men such as the Sandy Hook shooter through product placement in violent video games.

The company denies liability and made no comment about the settlement.

WW 4: “Prince Andrew intends to make a substantial donation to Ms. Giuffre’s charity in support of victims’ rights. Prince Andrew has never intended to malign Ms. Giuffre’s character, and he accepts that she has suffered both as an established victim of abuse and as a result of unfair public attacks,” reads the statement of the Duke of York on the announcement of a settlement of the lawsuit filed against him by child sex trafficking victim Virginia Giuffre. The settlement for an undisclosed amount comes after Prince Andrew’s attempts to have the lawsuit dismissed failed.

WW 5: UC Berkeley may have to reduce the number of new enrollees it planned to admit – freshmen and transfers – by thousands this fall as a result of a court ordered freeze on the University’s efforts to expand. The court ordered the enrollment freeze as part of a lawsuit by community members who oppose the “environmental impact” of the school’s growing footprint, citing a housing crisis in the area. Many prospective freshmen received letters like this:

Students across the nation and world are receiving these letters this morning. pic.twitter.com/Qi5nLSWr7h

— 🏳️‍🌈 Lori Droste (@loridroste) February 15, 2022

WW 6: As jurors deliberated in Sarah Palin’s defamation case against the New York Times, the trial judge made a surprising and rare move: he announced his belief that Palin had not proven any malice on behalf of the Times and that he would dismiss the case, even if the jury found in Palin’s favor. This is called a “judgment notwithstanding the verdict” (or JNOV, as we lawyers call it, for the Latin “judgment non obstante veredicto”.) So why bother letting the jurors continue to deliberate? To make a fuller record for the inevitable appeal. If the jury found in Palin’s favor, and the Court’s decision to dismiss the case is subsequently overturned by an appellate court, the jury’s verdict could be reinstated and remove the necessity for a new trial. And if the jury found in favor of the Times, an appeal would be much harder for Palin in light of the verdict. As it turned out, the jury agreed with the judge, finding the Times not liable.

WW 7: In 1997, Brandon Jackson was convicted of armed robbery in Louisiana by a non-unanimous jury. The use of a non-unanimous jury was a holdover from the Jim Crowe era, designed to minimize the voices of black jurors. It worked as designed when the only two black jurors on Jackson’s case voted to acquit but were overruled. He was released last week after 25 years, but only by the grace of the parole board. Non-unanimous juries were ruled unconstitutional in 2020, but the change was not retroactive.

WW 8: 230 people claim that Hertz rental car company had them falsely arrested for theft of rental cars when they fail to find their cars in their lots or due to errors in their computer systems. Facing a lawsuit, the company has tried to hide the exact number of customers it has reported for theft, but a court has ruled they must disclose this information.