San Francisco sued over using rape kit DNA against victim

SAN FRANCISCO (KRON) — The City of San Francisco is facing a lawsuit from a sexual assault victim whose rape kit DNA was used to charge her with a property theft, according to the victim’s attorney.

The suit was filed on behalf of Jane Doe — an alias used to protect the identity of the sexual assault victim — in U.S. District Court in San Francisco. Civil rights attorney Adanté Pointer is representing Doe in the case.

“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,” Pointer said in a statement.

During a search of a San Francisco Police Department crime lab database, the woman’s DNA was tied to a burglary in late 2021. Her DNA had been collected and stored in the system as part of a 2016 domestic violence and sexual assault case, then-District Attorney Chesa Boudin said in February in a shocking revelation that raised privacy concerns.

The revelation 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.

Federal law already prohibits the inclusion of victims’ DNA in the national Combined DNA Index System. There is no corresponding law in California to prohibit local law enforcement databases from retaining victims’ profiles and searching them years later for entirely different purposes.

In 2016, Doe gave a DNA sample to members of the San Francisco Police Department for an investigation into her sexual assault. According to the lawsuit, the state’s patient consent form used when collecting samples from sex crime victims doesn’t include language that grants permission for the DNA to be used for unrelated investigations.

SFPD kept Doe’s DNA in the police database for more than six years. According to the lawsuit, the crime lab routinely ran crime scene evidence through the database where her DNA was held without asking for her consent. “Her DNA was likely tested in thousands of criminal investigations, though the police had absolutely no reason to believe that she was involved in any of the incidents,” the lawsuit states.

California lawmakers last month approved a bill that would prohibit using the DNA profiles collected by police from sexual assault survivors and other victims for any purpose other than aiding in identifying the perpetrator. Local law enforcement agencies would also be prohibited from retaining and then searching victim DNA to incriminate them in unrelated crimes under the legislation, which is pending before Gov. Gavin Newsom.

Boudin said the report was found among hundreds of pages of evidence against a woman who had been recently charged with a felony property crime. After learning the source of the DNA evidence, Boudin dropped the felony property crime charges against the woman.

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

Scott said at a police commission meeting in March that he had discovered 17 crime victim profiles, 11 of them from rape kits, that were matched as potential suspects using a crime victims database during unrelated investigations. Scott said he believes the only person arrested was the woman who filed the lawsuit Monday.

The woman filed the lawsuit under the alias of Jane Doe to protect her privacy, Pointer said. The Associated Press generally does not name people who say they have been sexually assaulted unless they choose to be named.

California allows local law enforcement crime labs to operate their own forensic databases that are separate from federal and state databases. The law also lets municipal labs perform forensic analysis, including DNA profiling, and use those databases — without regulation by the state or others.

The Associated Press contributed to this report.