Everything will be used against you

I’ve said before that we need to make it clearer than crystal that rape victims (male or female) absolutely must cooperate with law enforcement with collecting evidence to ensure the perpetrator is prosecuted.

As part of that collection, they’ll also collect a DNA sample from the victim so they can identify it within a collected evidence sample. So if the lab, for example, identifies three unique individuals within the sample, having the victim’s DNA readily available means one of those three unique DNA profiles is identified, leaving the other two – likely the perpetrators.

But what happens to the DNA profile that is collected from the victim? Is it retained only for the investigation or can the police retain it for future use?

A woman in California learned the hard way that the police will retain it for future investigations. As the DNA profile generated from a sample she provided as part of a rape kit was retained by law enforcement and later used to identify her as a perpetrator in another crime.

So is that a Fifth Amendment violation? No.

Unless there is a statute saying otherwise, when you submit fingerprints or DNA to the police, the police will record that evidence in their databases. This includes DNA evidence submitted as part of a “rape kit”.

One of the core messages in the Miranda warning is simply this: anything you give to the police will be used against you. Anything you give the police voluntarily they will retain until the police feel it is no longer useful.

DNA and fingerprints, however, are never not useful to law enforcement.

Let me repeat this for the people in the back: “Anything you say CAN and WILL be used AGAINST you!” Anything you voluntarily give to the police will also be used against you. There is nothing in the Constitution protecting you from that happening because anything you turn over to law enforcement voluntarily is pretty much fair game.

As I’ve said before, the Constitution protects you from being compelled to testify against yourself. It doesn’t protect you when you willingly (even if unwittingly) do so. And handing anything over to the police is a form of testimony. And doing so willingly exempts that from the Fifth Amendment.

That doesn’t mean this situation isn’t problematic. It absolutely is because it has the potential to dissuade sex assault victims – especially victims who are poor or a minority – from cooperating with law enforcement to avoid being the target of an in-progress or future investigation. But can anything be done about this? Absolutely. And it’s pretty simple, too.

It’ll take a statute by the State legislatures to exempt any victim DNA provided for a sex crime investigation from being retained in any database or used for any investigation beyond the one for which it was submitted. Instead the victim DNA profile should be tagged with a specific case number and not used for any other investigation – unless, by some stroke of bad luck, the victim is victimized again. Congress would need to pass a similar statute for the Federal and military jurisdiction.

And hopefully California and other States will move on making this exemption. Since the DNA evidence was turned over likely with the idea in mind of identifying her DNA in the collected sample, just so they know which is hers and which is the assailant. That they retained that DNA profile and used it against her later is… troubling for the aforementioned reasons, but perfectly allowable under the Constitution. Again only a statute can prevent that from happening in the future.

At the same time, if you know the police have your DNA or fingerprints, how does that not dissuade you from committing any crimes in the future?