Opinion: Sexual assault survivors in NY, your DNA can be used against you

A new bill would stop the police from using sexual assault survivors’ DNA to implicate them in unrelated crimes.

Yuichiro Chino

In early 2022, the San Francisco Police Department used a survivor’s sexual offense evidence kit to identify her as a suspect in an unrelated crime. The sexual offense evidence kit, taken in 2016 after the survivor was sexually assaulted, contained DNA that the SFPD linked with DNA found at the scene of a property crime. It’s unclear whether her DNA was ever used to identify her attacker.

This practice is an invasive violation of the rights of sexual assault survivors that denies them privacy over their own medical information. The survivor in the 2022 action consented only after she was assured that her information would remain “confidential” Instead, the police reportedly tested her DNA in “hundreds, if not thousands of cases” to try to tie her to various crimes. She was eventually arrested after a test matched her DNA to that found at a crime scene. 

Using survivors’ DNA against them has a chilling effect on reporting incidents of sexual assault. If survivors of sexual assault are fearful that their DNA can be used without their knowledge or permission to implicate them in unrelated crimes, they are less likely to complete a sexual offense evidence kit. DNA collection is a critical first step in the process of identifying, prosecuting, and convicting perpetrators of sexual violence. If fewer survivors complete sexual offense evidence kits, more predators will likely go free.

Survivors of sexual assault shouldn’t be deterred from reporting a crime for fear that evidence of their assault could later be used to accuse them of some unrelated crime. When you compare the eagerness of some police departments to use sexual assault evidence against the victim with the “rape kit backlog” that allows thousands of completed rape kits to sit untouched in a lab or storage facility for years, the injustice is clear. The focus should be on catching the perpetrators of sexual assault, not the victims.

That’s why we – state Sen. Brad Hoylman-Sigal and Assembly Member Monica Wallace – introduced legislation (S997A/A5350) to prohibit police departments from adding DNA collected from sexual assault evidence kits to the state identification indexes or other databases for criminal investigations. The state Legislature now has the opportunity to protect the rights of people who are at their most vulnerable. This bill has the potential to increase the likelihood that perpetrators of sexual violence are identified, prosecuted, and convicted. It can also provide stronger protections for survivors’ medical information, and, most importantly, give survivors peace of mind.

It’s past time for New York state to join those states that prioritize catching sexual assault perpetrators, not their victims. A growing number of states, including California and Nevada, have passed or proposed legislation preventing the use of DNA from sexual offense evidence kits for any reason other than to identify the perpetrator of the sexual offense in question. Maryland and Montana have also passed legislation restricting police use of DNA that was not originally intended for criminal investigations, including DNA provided to genealogy websites or services. Sexual assault victims in New York deserve the same protection.

Survivors of sexual assault endure a lengthy and demeaning evidence collection process that is critical to ensuring perpetrators are caught. No survivor should worry that the evidence collected can later be used against them. Survivors deserve support and respect following incidents of sexual violence. If signed into law, this bill would protect countless individuals from having to choose between getting justice and putting themselves at risk of future criminal prosecution.

Liana Meehan is a second-year law student at St. John's University School of Law interested in cybersecurity and data privacy law. Brad Hoylman-Sigal is a state senator representing the West Side of Manhattan and the chair of the Senate Judiciary Committee. Monica Wallace is an Assembly member representing portions of Erie County.

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