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San Francisco sued over use of sex assault victim’s DNA to arrest her

The woman claims she had no idea her DNA was being stored — or that it would be used against her by the San Francisco Police Department.

SAN FRANCISCO (CN) — Amid a local outcry against San Francisco police using a rape victim's DNA from her assault case to arrest her six years later comes a federal lawsuit filed against the city by the woman

Jane Doe sued the city and several officials with the San Francisco Police Department after former District Attorney Chesa Boudin reported the police crime lab database used her DNA to connect her to an unrelated property crime in late 2021. Her DNA had been collected and stored since a 2016 domestic violence and sexual assault case in which she told police she had been raped by her mother’s boyfriend. Police later used the DNA to connect her to a completely different crime but never told her the genetic material had been stored.

Boudin said the report was found among hundreds of pages of evidence and the local database also contained victims’ DNA with samples from child victims. He dropped all felony property crime charges against the woman.

Jane Doe claims police took her DNA “under the pretense of using it to investigate the sexual assault.” Instead, police criminologist Kelley Fracchia tested it and other samples in the local database against every genetic sample from every crime scene, which Doe says is illegal because she provided the DNA only for her rape case. Sgt. Sylvia Lange cited Fracchia’s report to seek and receive an arrest warrant for Doe, initiating the burglary-related charges Boudin later dropped. 

“This is government overreach of the highest order, using the most unique and personal thing we have — our genetic code — without our knowledge to try and connect us to crime,” said Doe's attorney Adante Pointer in a statement.

"It's a case that goes beyond the four corners of her lawsuit," he said in a phone interview. "It has impacted hundreds, if not thousands, of crime victims that find themselves in San Francisco's databases who essentially have given up their unique identifier to the government, in exchange for the government using that information to investigate and hopefully bring justice against the people who violated them. Instead, that trust has been violated, and their DNA has been weaponized against them."

Pointer said the practice is akin to an unlawful search under the Fourth Amendment and the right against self-incrimination in the Fifth Amendment —except the victims do not get any opportunity to refuse searches using their stored DNA.

The police department's crime lab stopped the practice shortly after receiving Boudin's complaint and changed its operating procedure to prevent the misuse of DNA collected from sexual assault victims, Police Chief Bill Scott, a named defendant, said. 

Scott said at a police commission meeting this past March that he found 17 crime victim profiles, 11 from rape kits, matched as potential suspects using the database during unrelated investigations. He claimed Doe was the only person arrested as a result of these investigation methods. 

The case has prompted a national outcry from advocates, law enforcement, legal experts and lawmakers. Advocates said the practice could affect victims’ willingness to come forward to law enforcement authorities.

And state lawmakers recently approved a bill arising directly from this case. Senate Bill 1228 protects victims' privacy by prohibiting DNA profiles collected from them from being used for any purpose other than to identify a perpetrator in an assault. Local law enforcement agencies will be prohibited from searching the DNA of a victim or their contacts to incriminate them in unrelated crimes. 

Federal law already prohibits the inclusion of victims’ DNA in the national Combined DNA Index System, but there was no corresponding California law to prohibit local law enforcement databases from retaining victims’ profiles and using them later for new purposes. These databases can be operated by crime labs separately from federal and state databases, and can perform forensic analysis, including DNA profiling, without regulation by the state.

San Francisco police have also faced scrutiny in the past for holding thousands of untested rape kits that were never sent to labs, despite prior representations that it tested all of them. California now requires police departments to report the number of untested rape kits to the state Department of Justice.

Pointer said he hopes the governor and federal agencies will review this practice because he has "zero confidence" the practice is limited to San Francisco or California.

"This is a department that has a troubled past with rape kits, dealing with rape survivors and the prosecution of rapists," Pointer said. "This practice does nothing to encourage people to come forward; in fact, it does just the opposite."

San Francisco Mayor London Breed’s office declined to comment on the pending litigation. But city attorney spokesperson Jen Kwart said via email that “the city is committed to ensuring all victims of crime feel comfortable reporting issues to law enforcement and has taken steps to safeguard victim information."

Doe's claims include violations of her Fourth Amendment rights, flawed supervisory training policies and negligence. She seeks general, special and punitive damages, as well as an order forbidding the San Francisco Police Department's use of victim DNA to arrest them for unrelated crimes.

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