Police Using DNA Rape Kits to Identify Survivors in Other Crimes May Be Banned Under California SB 1228

Police Using DNA Rape Kits to Identify Survivors in Other Crimes May Be Banned Under California SB 1228

Jan 3, 2023

California lawmakers introduced new legislation earlier this month that would bar law enforcement agencies from keeping survivors’ DNA obtained through rape kits in searchable databases that could then be used to identify suspects in separate crimes. The legislation, known as California Senate Bill 1228 (SB 1228), was introduced by state senator Scott Weiner and San Francisco District Attorney Chesa Boudin. SB 1228’s introduction comes after multiple media outlets reported in February that a property crime case was brought against a sexual assault survivor in San Francisco after she was identified from DNA evidence obtained through a 2016 rape kit.

• What is California Senate Bill 1228 (SB 1228)?
• Do I Have to Report a Sexual Assault to the Police?
• Why are California Sexual Assaults so Underreported?
• Should I File a Civil Lawsuit if I’ve Been Sexually Assaulted?
• Contact a Los Angeles, California, Sexual Assault Lawyer Today

Although the charges were eventually dropped by District Attorney Boudin’s office, news of the use of DNA evidence against sexual assault survivors in separate crimes sparked public outrage. Furthermore, the Washington Post reported that the San Francisco Police Department’s practice of using DNA rape kits to identify crime suspects was routine and not an isolated incident.

“Victims of sexual assault should be encouraged and supported in coming forward to undergo sexual assault examinations to identify their perpetrator,” Boudin said in a news release earlier this month. “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“, Boudin added.

According to a CNN report, the San Francisco Police Department has implemented “immediate changes to the handling of victims’ DNA” while also working on permanent policy changes in conjunction with the District Attorney’s office and California’s Department of Justice.

The proposed senate bill comes with the approval of San Francisco Police Chief Bill Scott, according to CNN.

“When revelations came to our attention about our department’s possible misuse of a DNA profile, I ordered an immediate change to our crime lab practices assuring that it doesn’t happen again,” Police Chief Scott said in a statement.

What is California Senate Bill 1228 (SB 1228)?

During a Police Commission meeting earlier this month, Mark Powell, manager of the San Francisco Police Department’s crime lab, explained the process of using rape kit DNA to identify the aforementioned sexual assault survivor (whose identity was not revealed).

Noting that a “quality assurance” database was created to rule out contamination, Powell confirmed that the database contains DNA from lab staff, investigators, and any profiles technicians work up in the lab (including sexual assault cases). Powell indicated that investigators first run profiles of unknown suspects in the quality assurance database to confirm they are not actually uploading contaminated DNA into the state and federal Combined DNA Index System (CODIS). He also said the lab created the quality assurance database in 2015, according to a report from FOX KTVU 2.

At some point between 2015 and 2022, Powell confirmed that the lab began seeing “DNA matches in the quality assurance database that didn’t match in CODIS that they reported to investigators anyway,” according to KTVU.

Victim DNA as well as genetic markers of those close to the survivor – housemates or consensual partners – may also be collected through such a practice in an effort to eliminate the individuals as suspects, according to CNN.

Although the practice of using survivors’ DNA from rape kits in separate crimes has ended in San Francisco, California SB 1228 would ban the practice statewide.

In addition to San Francisco, some California counties are taking immediate steps to ban the use of DNA from rape kits in separate crimes. Santa Clara County, home to San Jose, is one such county that is not waiting for SB 1228 to pass before implanting change.

As CNN reported, Santa Clara District Attorney Jeff Rosen stated that, “Victim DNA does not go into an offender database, period.”

“We want to protect victims of sexual assault, not collect evidence from them that can be used against them later,” Rosen added.

At a news conference earlier this month. Santa Clara County Supervisor Cindy Chavez joined Rosen to express unified support for banning the use of rape kit DNA in identifying survivors in separate crimes.

“We want to make sure that all of our policies are airtight when it comes to the DNA rape kit samples collected,” Chavez, who represents the east side of San Jose, said.

As we noted in a February blog, our founder and former sex crimes prosecutor, Sam Dordulian, stated that using DNA rape kit evidence for anything other than the case in question could deter sexual assault survivors from reporting incidents to law enforcement.

“It is tough enough for sexual assault survivors to come forward, and every effort should be made to protect their privacy, including the use of their DNA. There is already a system in place for collecting DNA from those arrested or convicted of a crime, and going beyond that measure is unnecessary,” Dordulian said.

Do I Have to Report a Sexual Assault to the Police?

Reporting a sexual assault to the police is not required for survivors. It is, however, often recommended, as not reporting sex crimes may allow the perpetrator to continue to victimize more and more individuals.

Regardless of whether or not criminal charges are ever filed, a civil lawsuit may be brought by or on behalf of a sexual assault survivor (known as the plaintiff). A civil lawsuit may be filed against both the perpetrator and any affiliated institution or employer that may have played a role in allowing the sexual assault to occur.

Civil lawsuits are subject to the survivor’s attorney being able to demonstrate a preponderance of evidence to meet the burden of proof. Unlike criminal lawsuits which are subject to demonstrating evidence beyond a reasonable doubt, civil claims meet the burden of proof when the party with the burden convinces a judge or jury that there is a greater than 50% chance that the claim is true.

Why are California Sexual Assaults so Underreported?

RAINN (Rape, Abuse & Incest National Network), the nation’s largest anti-sexual violence non-profit, confirms that the vast majority of sexual assaults go unreported.

According to RAINN’s data, only 310 out of every 1,000 sexual assaults are ever reported to police (meaning more than two out of every three go unreported). Female student survivors are the least likely to report sexual assaults, at a rate of only 20%, while female non-student survivors tend to report at a rate of only 32%.

As RAINN notes, of the sexual violence crimes not reported to police from 2005-2010, the survivor gave the following reasons not wishing to come forward:

• 20% feared retaliation
• 13% believed the police would not do anything to help
• 13% believed it was a personal matter
• 8% reported to a different official
• 8% believed it was not important enough to report
• 7% did not want to get the perpetrator in trouble
• 2% believed the police could not do anything to help
• 30% gave another reason, or did not cite one reason

Conversely, RAINN’s data indicates that of the sexual violence crimes reported to police from 2005-2010, the survivor reporting gave the following reasons for doing so:

• 28% to protect the household or victim from further crimes by the offender
• 25% to stop the incident or prevent recurrence or escalation
• 21% to improve police surveillance or they believed they had a duty to do so
• 17% to catch/punish/prevent offender from reoffending
• 6% gave a different answer, or declined to cite one reason
• 3% did so to get help or recover loss

Should I File a Civil Lawsuit if I’ve Been Sexually Assaulted?

If you’re a survivor of sexual assault or abuse, you have rights under the law. A civil lawsuit can be a means of recovering critical financial compensation for various losses.

Some common damages that may be recoverable through a sexual assault civil claim include:

• Emotional trauma
• Lost wages
• Lost earning capacity
• Counseling or therapy costs
• Diminished quality of life

A sexual assault or abuse civil lawsuit can me a means of not only helping a survivor obtain justice, but also holding the perpetrator accountable for his or her actions. Dordulian Law Group’s (DLG) SAJE Team of professionals have helped countless sexual abuse survivors secure justice and recover maximum financial damages awards for their claims.

Some of our recent sex crime civil lawsuit victories include:

• An undisclosed multi-million dollar settlement for a rape survivor (our client had met a man on a ‘Sugar Daddy’ dating website)
• An undisclosed multi-million dollar settlement for a rideshare rape survivor
• A $675,000 settlement secured under AB 218 (our client wished to remain anonymous and recover the quickest possible settlement)
• An undisclosed maximum damages award for minimal contact under the eggshell plaintiff rule
• A $300,000 trial verdict for a local businesswoman against a prominent venture capitalist

Our Sexual Assault Justice Experts are here to help survivors secure justice. Contact our top-rated attorneys online or by phone for a free consultation today.

Contact a Los Angeles, California, Sexual Assault Lawyer Today

A sexual assault civil lawsuit in pursuit of financial compensation can be filed by calling an experienced DLG sex crimes lawyer for a free, confidential, and no obligation consultation.

During your free California sexual assault lawyer consultation, a DLG team member will:

• Review the facts of your case and determine whether negligence was involved
• Discuss all available legal options for your sexual assault claim
• Provide an estimate for how long your sexual assault lawsuit might take to settle
• Provide an estimate for how much your sexual assault lawsuit may be worth

To discuss your sexual assault or abuse civil claim, contact a member of DLG’s SAJE Team today at 818-322-4056. DLG’s sex crime attorneys have helped victims recover more than $100,000,000 in settlements and verdicts while maintaining a 98% success record.

Contact DLG to take the first step towards securing justice for your sexual assault claim. We’re here to serve as your dedicated legal advocates and fight to recover the maximum financial compensation you deserve.