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Senate Public Safety Committee Unanimously Passes* Senator Wiener and District Attorney Boudin’s Legislation to Protect Sexual Assault Survivors’ DNA

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Rachel Marshall, (415) 416-4468 / Rachel.Marshall@sfgov.org

Director of Communications / Policy Advisor / Assistant District Attorney    

SACRAMENTO, CA—Today, California State Senator Scott Wiener and San Francisco District Attorney Chesa Boudin announce that the Senate Public Safety Committee has passed their bill, Senate Bill 1228: Genetic Privacy for Sexual Assault Victims, by a unanimous, bipartisan vote.*  It will now be heard in the Senate Appropriations Committee before heading to the full Senate for a vote. Assemblymember Phil Ting (D-San Francisco) is the Principal Co-Author. The bill 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. This protects the privacy and constitutional rights of sexual assault survivors, and promotes public safety by encouraging survivors to report sexual violence.

“Public safety demands that we encourage and support survivors who come forward to undergo sexual assault examinations—and eliminate barriers to reporting.  The shameful practice that my office exposed of a crime lab retaining and then searching survivors’ DNA to incriminate them in unrelated crimes is unethical and violates their privacy,” said District Attorney Boudin, who testified before the Public Safety Committee today in support of the bill.  “I am honored to cosponsor SB 1228 with Senator Wiener and to testify in support of this important legislation to protect the rights of sexual assault survivors.  My office is committed to protecting, supporting, and standing up for survivors and we will continue our fight for the rights and dignity of sexual assault survivors.”

“I was stunned to learn that, right now, a DNA sample from a sexual assault examination can be used to incriminate the survivor in a future crime. That is simply unacceptable,” said Senator Wiener. “When someone survives a sexual assault, getting a sexual assault examination can help law enforcement find or prosecute the perpetrator. Survivors’ privacy must be protected when they undergo these exams. Sexual assault exams can feel traumatic and invasive, and it’s our responsibility to ensure that survivors who get these exams done are protected.”

“We must do all we can to support survivors of sexual assault. This legislation sends the message they can trust the criminal justice system and come forward to report their cases,” said Assemblymember Phil Ting (D-San Francisco).

“The DNA from a rape victim should never be used to charge that victim with another crime. It’s morally wrong and completely counterproductive. Sexual assaults are already under reported — less than 20% of rape victims now go to law enforcement and report their assault. We need victims to cooperate with police so we can catch and prosecute rapists,” said Sen. Nancy Skinner (D-Berkeley). “I’m proud to co-author SB 1228 to let rape survivors know: Law enforcement is there to protect you, not re-victimize you.”

About Sexual Assault DNA Testing

When victims of sexual assault report a sexual assault, they can consent to a sexual assault examination. During this examination, biological evidence from bodily fluids, fingernail scrapings, and bite and scratch marks is collected from the victim’s body. This evidence often contains the perpetrator’s DNA. The victim submits their own DNA sample in order to exclude DNA that comes from the victim, as opposed to the suspect.  In addition, reference samples are often voluntarily given by those who have close contact with the survivor—such as consensual sexual partners, family members, or other people living in the same household. These DNA samples are given so that these people’s DNA may also be differentiated from that of the perpetrator.

Sexual assault is significantly under-reported; less than a quarter of sexual assault survivors come forward to report to police.  Of those survivors who do report, only a small percentage undergo the highly invasive process of sexual assault testing. Victims of sexual assault consent to their DNA collection in order to apprehend the perpetrator, not so that their DNA will be retained in a local law enforcement database permanently to be searched years later.  Using victims’ DNA in order to potentially incriminate them in the future further dissuades sexual assault survivors from undergoing what is already a very difficult process.

SB 1228

 SB 1228 will protect sexual assault survivors’ privacy by prohibiting the DNA profiles collected from sexual assault survivors from being used for any purpose other than aiding in identifying the perpetrator of a sexual assault.  Local law enforcement agencies will be prohibited from searching the DNA of a sexual survivor or that of a survivor’s close consensual contacts in order to incriminate them in unrelated crimes.

Federal law already prohibits the inclusion of victims’ DNA in the national Combined DNA Index System (CODIS) in 34 U.S.C Section 12592(a)(1)(C).  However, there is no corresponding California state law to prohibit local law enforcement databases from retaining victims’ profiles and searching them years later for entirely different purposes.  This legislation would remedy that by requiring DNA samples taken from sexual assault survivors or their loved ones to be used only for the sexual assault investigation.  It would prohibit DNA samples from being included in any database that allows for a sample to be matched with DNA profiles obtained from crime scenes.

The bill would also instruct the Committee on Revision of the Penal Code to study whether additional steps are needed to protect the privacy of Californians who have submitted DNA samples to law enforcement, and to determine whether a forensic oversight board is needed. Forensic oversight boards exist in other states including Massachusetts, New York and Texas.

 The Background of SB 1228

 Senator Wiener and District Attorney Boudin authored and cosponsored SB 1228 following the discovery that a the San Francisco Police Department crime lab was retaining DNA collected from sexual assault survivors in its quality assurance database and then searching that database to incriminate survivors in unrelated crimes.  District Attorney Boudin exposed the practice in February after learning that DNA from a survivor’s rape kit had been used to incriminate her in a property crime six years later.  This was reported by the laboratory to be “standard practice.” It has since been confirmed that the local database containing victims’ DNA includes DNA collected from child victims.  Subsequent reporting revealed that this practice could be widespread.

SB 1228 will end this practice and will ensure that the practice of retaining and searching sexual assault survivors’ DNA for other purposes will stop state-wide.  Local legislation—sponsored by Supervisor Hillary Ronen—has already passed unanimously in San Francisco.

Testimony and Support for SB 1228

 Today, the Senate Public Safety Committee heard testimony from District Attorney Boudin and from Ilse Knecht, the Joyful Heart Foundation’s Policy and Advocacy Director, about the importance of this legislation.

“More than two thirds of sexual violence victims do not report their assault to law enforcement. Using a survivor’s rape kit for any other purpose other than why it was collected furthers their fear of reporting and adds another reason survivors don’t come forward,” says Ilse Knchect, Director of Policy and Advocacy at the Joyful Heart Foundation. “Any legislation that breaks down barriers to reporting is a victory for survivors everywhere. Joyful Heart Foundation applauds Senator Wiener for the introduction of this vital legislation.”

“If we allow victims’ most intimate personal information – their DNA – to be used against their will and for the purpose of incriminating them for crimes, then victims will be afraid to come forward and even more sexual assaults will go unsolved,” said Cristine Soto DeBerry, Executive Director of Prosecutors’ Alliance of California.  “We as Californians need to put all victims first and help them heal. We need to stop judging between deserving and underserving victims. We must protect the rights of all victims and make healing trauma our top priority. That is how we make communities safe.”

*Vote is not yet final.