Revelations that the San Francisco Police Department stored rape victims' DNA in a database used to identify crime suspects has raised questions about the practice's legality, and prompted California and New York lawmakers to propose new state legislation to protect sexual assault victims.

New York state Sen. Brad Hoylman, D-Manhattan, and California state Sen. Scott Wiener, D-San Francisco, have each introduced bills in their respective states that would prohibit the storage of sexual assault victims' DNA in searchable state databases used to identify crime suspects.

Under the proposed bills, local law enforcement would also be prohibited from using sexual assault victims' DNA for criminal investigations and proceedings unrelated to the prosecution of their assailant.

On the introduction of the California bill last week, Wiener said in a statement that using survivors' DNA from sexual assault exams to implicate them in crimes is an "unbelievable violation."

"Sexual assault exams are traumatic enough as it is; we don't need to create additional reasons for survivors to forgo them," he said.

San Francisco District Attorney Chesa Boudin revealed Feb. 14 that his office discovered the city's police department stores sexual assault victims' DNA in a searchable database used to identify potential crime suspects.

Boudin said his office made the discovery when reviewing documents related to 2021 felony property crime charges against a woman whose DNA was collected during a sexual assault medical exam after a 2016 rape. He condemned the practice, saying it is "legally and ethically wrong," and dropped the charges against the woman.

"This practice treats victims like evidence, not human beings," Boudin said in a statement, adding that his office would work to end the practice and introduce state legislation prohibiting it.

Camille Cooper, vice president of public policy at RAINN, a national sexual violence prevention organization, said in a Feb. 15 statement that the practice was "indefensible" and would deter sexual assault victims from seeking medical attention or reporting assaults.

"Survivors who undergo rape kit exams have consented to the collection of their DNA for a very specific purpose: to catch the person who raped them," Cooper said.

Ilse Knecht, director of policy and advocacy at Joyful Heart Foundation, a national sexual assault and domestic violence prevention organization, told Law360 in a recent interview that she was disappointed and angry rather than surprised by the San Francisco Police Department's DNA storage practice.

She said the practice defeats years of work advocacy organizations have done to educate law enforcement about sexual assault, its impact on survivors and how to make them feel safe reporting their attacks.

According to RAINN, nearly 70% of sexual assaults are not reported to police and of the sexual assaults that are reported to police, 5% lead to an arrest.

"Survivors will think twice about reporting to law enforcement, if they think their DNA is going into this database," Knecht said. "They could not have a criminal record in the past, or they could; regardless, it makes people fearful. There's a lot of misinformation out there about DNA and how it gets used."

Knecht is also head of Joyful Heart's End the Backlog campaign that aims to ensure all sexual assault exam kits in the U.S. are tested. According to End the Backlog, 28 states combined have thousands of untested rape kits, as of August 2020. Only six states have eliminated their rape kit backlogs.

San Francisco Police Department Chief William Scott said in a Feb. 16 statement that crime victims should never be disincentivized to cooperate with police.

"If it's true that DNA collected from a rape or sexual assault victim has been used by SFPD to identify and apprehend that person as a suspect in another crime, I'm committed to ending the practice," Scott said.

It's unclear, though, whether the San Francisco Police Department is violating any existing state or federal laws by storing sexual assault victims' DNA in a database used to identify criminal suspects.

Under federal law, law enforcement is prohibited from adding victims' DNA to the FBI's national combined DNA index system, referred to as CODIS, used to identify crime suspects across state lines. However, this federal law doesn't apply to state DNA databases that are not connected to CODIS.

Boudin's office told Law360 it believes storing sexual assault victims' DNA in a local database to identify crime suspects is a violation of the Fourth Amendment, which protects individuals against unreasonable searches and seizures.

In addition, Michael Risher, of counsel for the American Civil Liberties Union of Northern California, said in a Feb. 14 statement that the California state constitution explicitly protects privacy and victims' rights.

"The police violate a victim's privacy when they put her DNA profile in a criminal database and then maintain that profile to use for reasons that have nothing to do with the case they are investigating," Risher said.

Northwestern University Pritzker School of Law professor Ronald Allen, who specializes in criminal procedure and constitutional law, disagrees with Boudin. Allen told Law360 in a recent interview that law enforcement using a victim's DNA from a sexual assault case in another criminal investigation is not a violation of the Fourth Amendment under the third-party doctrine.

Allen said that under the third-party doctrine, if a rape victim consents to giving police a DNA sample, such as through a sexual assault exam kit, the police can do whatever they want with the DNA.

"The only way in which this might be seen to violate the Fourth Amendment is if the rape victim were coerced into giving a DNA sample," he said. "You're not subjected to an unreasonable search and seizure when the police take what they have a right to have because you consented to their taking the specimen, and using it however they like."

Scott, the San Francisco police chief, said in a statement the department's "DNA collection policies have been legally vetted, and conform with state and national forensic standards."

George Washington University Law School professor Sonia Suter, who focuses on legal issues involving genetics, told Law360 in an interview that having a federal statute regulating how police store and use sexual assault victims' DNA would be helpful, but the federal branch is limited in how much it can regulate local governments.

The federal government needs a jurisdictional basis to regulate local law enforcement DNA databases, according to Allen. For example, the federal government could tie funding to adhering to certain guidelines, he said.

"If you leave it to the states, then states aren't going to necessarily do it, which means that you're going to have victims in some states who are subject to this, and victims in other states who aren't," Suter said.

--Editing by Marygrace Anderson and Lakshna Mehta.

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