Rachel Marshall, (415) 416-4468 / Rachel.Marshall@sfgov.org, Director of Communications
SAN FRANCISCO, CA—Today, San Francisco District Attorney Chesa Boudin and California State Senator Scott Wiener announced the introduction of Senate Bill 1228: Genetic Privacy for Sexual Assault Victims. Assemblymember Phil Ting (D-San Francisco) is the Principal Co-Author. The bill would prohibit law enforcement from retaining the DNA profile of sexual assault survivor 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.
“Victims of sexual assault should be encouraged and supported in coming forward to undergo sexual assault examinations to identify their perpetrator. Instead, the practice by a police crime lab that my office exposed treats victims like criminals. It not only violates their privacy, but it dissuades victims from reporting sexual violence—which makes us all less safe,” said District Attorney Boudin. “Today, I am honored to cosponsor SB 1228 with Senator Wiener to protect the constitutional rights of sexual assault survivors. My office stands with survivors and will continue to fight to protect their rights in every way we can.”
“Sexual assault is among the worst things that any person can experience, and we must do everything in our power to support and protect survivors who make the brave choice to come forward,” said Senator Wiener. “It is an unbelievable violation to use survivors’ DNA — given expressly for the purpose of finding or prosecuting a perpetrator — to incriminate them. Sexual assault exams are traumatic enough as it is; we don’t need to create additional reasons for survivors to forgo them. SB 1228 will help us protect survivors’ rights and privacy.”
“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).
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 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 Context of SB 1228
SB 1228 emerged 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.
District Attorney Boudin and Senator Wiener immediately began working on state legislation to end this practice. That legislation, SB 1228, ensures that the local law enforcement agency practice of retaining and searching sexual assault survivors’ DNA for other purposes will stop.
It is not yet known how many victims’ have had their privacy rights violated through efforts to search their DNA, nor is it known how many survivors have had their DNA taken from a sexual assault test used to incriminate them in unrelated crimes.
Support for SB 1228
Since the discovery of this practice, advocates for sexual assault survivors and victim rights have widely condemned the practice and called for legislative action. Today, they praised Senator Wiener and District Attorney Boudin’s quick and decisive action to protect survivors from this practice.
“More than two thirds of sexual violence victims do not report the assault to law enforcement. Using a survivor’s rape kit for any other purpose other than to hold the perpetrator accountable further discourages survivors from coming forward, said Ilse Knecht, Joyful Heart Foundation’s Policy and Advocacy Director. “We applaud Senator Weiner for swiftly introducing legislation that rectifies this issue. SB1228 signals to survivors in California that they and what happened to them matters, and is a step towards building survivors’ trust.”