DA: SFPD's use of rape kit DNA to arrest victim linked to another crime could be unconstitutional

SAN FRANCISCO (KGO) -- San Francisco's police chief said he is investigating claims by the city's district attorney that DNA collected from rape victims is being kept in a database and used to help identify them as possible suspects in crimes.

The police crime lab has been entering DNA profiles from sexual assault victims into a suspect database, and one woman was recently arrested for a felony property crime based on her DNA collected years ago during a domestic violence-involved rape examination, District Attorney Chesa Boudin said Monday.

Now, victim advocacy groups and others fear the practice will stop people from reporting when they've been sexually abused.

"We are absolutely horrified that this is happening," Camille Cooper, VP of Public Policy for the Rape, Abuse & Incest National Network (RAINN) told ABC7 News. "Absolutely horrified."

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RAINN is the country's largest anti-sexual violence organization. After hearing the news, Cooper said it was the first she's heard of such a practice. Although it's unclear how often it's been used at SFPD.

"From our perspective, this is a violation of a victim's right to privacy," she shared. "This would have a very chilling effect on the ability and the desire of victims to come forward and report to the police."

Cooper urged, "I also think that it's very important for survivors, at this point, that when they do seek medical care, to make it very clear that they are not consenting to the use of their DNA in this way."

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Former prosecutor and criminal defense attorney Steven Clark added, "When a sexual assault victim gives their DNA, they're doing that consensually. And, if you utilize that DNA evidence against them- that's outside the scope of that consent- it really is questionably constitutional."

Pointing to the practice, Clark admitted the more DNA databases that investigators have access to, the more crimes can be solved.

However, he said the question here is, "At what societal cost?"

Clark added, "The greater good is prosecuting sexual offenders. Not going after the victim for a property crime."

The practice could violate the constitutional protection against unreasonable searches and seizures, as well as California's Victims' Bill of Rights, and could dissuade sexual assault victims from reporting crimes, Boudin said, according to the San Francisco Chronicle.

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The District Attorney's Office has released the following statement:

"Rapes and sexual assault are violent, dehumanizing, and traumatic. I am disturbed that victims who have the courage to undergo an invasive examination to help identify their perpetrators are being treated like criminals rather than supported as crime victims. We should encourage survivors to come forward-not collect evidence to use against them in the future. This practice treats victims like evidence, not human beings. This is legally and ethically wrong. My office is demanding that this practice end immediately, and is encouraging local and state legislators to introduce legislation to end this practice in California. We remain committed to doing everything in our power to support survivors of sexual violence."

SFPD Chief Bill Scott said if it is a practice of the Investigations Bureau, he will end it.

A statement by the chief reads in-part: "We will immediately begin reviewing our DNA collection practices and policies. I have engaged with our City Attorney on this issue, and we are committed to working with our partners at Cal DOJ's Collaborative Reform Initiative, our District Attorney's Office, Public Defender's Office, Police Commission and community-based working group members to pursue any changes necessary that are worthy of our values of "Safety with Respect."

He added, "We must never create disincentives for crime victims to cooperate with police."

"I was literally speechless," St. Sen. Scott Wiener shared with ABC7 News. "I couldn't believe that law enforcement would use DNA from a rape kit to implicate someone in an unrelated crime."

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Sen. Wiener said his office is now looking to see if doing so violates state law. If not, he's considering introducing legislation to ban the practice.

"I don't know what failed in the system for this particular case, but I also am very eager to learn if this was an isolated incident, a mistake of some sort, or if this is more systematic," he continued. "If there are local databases that are being maintained, that are accessible to get that DNA from rape kits to use in other investigations."

"I want to know how extensive this is, in addition to determining what state law allows doesn't allow," Sen. Wiener said.

The DA's office has called a Tuesday morning press conference on the subject.