Use of a Sexual Assault Victim’s Rape Kit DNA in a Later Prosecution of that Same Victim

By Robert Phillips, Deputy District Attorney (Ret).

Use of a Sexual Assault Victim’s Rape Kit DNA in a Later Prosecution of that Same Victim 

The San Francisco’s District Attorney Chesa Boudin recently announced (as reported in the San Francisco Chronical) that he was dropping “felony property charges” previously filed against a woman in a case submitted by the San Francisco Police Department.  The stated reason for the dismissal is that she was apparently identified and charged solely through the use of her own DNA which she herself, as a sexual assault victim, had previously provided by submitting to a “rape kit” examination.  (No further details were provided out of respect for her privacy.)  

DA Boudin stated that he was disturbed to learn that using rape kit DNA to later identify and charge women in unrelated criminal cases is “a routine practice not only in San Francisco but at other crime labs across the state.”  Referring to this practice as “unlawful,” and “legally and ethically wrong,” the DA vowed not to allow the practice in San Francisco’s courts.  But is such a practice “illegal,” as DA Boudin stated   It may very well be an “ethical” violation.  (I’ll leave that issue to the ethics police.)  And it’s certainly arguable, as DA Boudin pointed out, that this practice might very well discourage sexual assault victims from coming forth and reporting their crimes if they knew that their DNA would be included in a database that could later be used against them.  But a quick review of the relevant case law tends to indicate that DA Boudin is simply wrong in claiming that the practice is “illegal.” 

As noted by San Francisco Police Chief Bill Scott, his department’s “existing DNA collection policies have been legally vetted and conform with state and national forensic standards.”  And while there is as of yet nothing directly on point (statutorily or by case law) with the DNA collection and ....

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