DNA Evidence and a National DNA Databank: “Not in Our Name”

Canadian women’s groups are against the proposed national DNA databank intended to aid in the solution of cases of violent attack, especially sexual assault, because their experience has shown that in most violent attacks the aggressor is known. The authors go on to show how neither justice nor the taxpayer will be served but rather how privacy and other Charter rights are being and will be violated.

Solicitor General Herb Gray has promised to introduce a bill before the end of 1996 that will allocate hundreds of millions of dollars for the establishment of a national DNA databank to permanently store the DNA of convicted criminals, against which to screen unsolved cases. In July 1995, Justice Minister Allan Rock introduced Bill C-104, the DNA warrant legislation. This bill permits courts to issue warrants for the forceful seizure of blood, hair or saliva samples from those accused of certain crimes, to be used in DNA testing. Bill C-104 was passed through the House of Commons faster than any other bill in Canadian history. It received all party support, and was accepted within one day.

In early 1996, the Solicitor General’s office released a consultation document on the DNA databank proposal. Of the responding groups and individuals, including among many others the Canadian Bar Association, the Canadian Association of Chiefs of Police and the British Columbia Civil Liberties Association, only women’s groups voiced strong objection. Since the vast majority of cases affected by this technology are and will be cases of violence against women, their withholding of support should be acknowledged as significant. The groups opposing the establishment of a DNA databank include the 670 member groups of the National Action Committee on the Status of Women (NAC) and the 60 women’s groups who participated in Allan Rock’s consultations in Ottawa in both 1995 and 1996.

Women working in rape crisis centres and transition houses are objecting to the increased focus on DNA evidence because in almost all cases of sexual assault, the attacker is known to the victim. In these cases, it is not the identity of the attacker that is in question, but whether or not the woman consented to sexual activity. Generally, a man accused of sexual assault will not deny his DNA is on the victim; he will deny that she objected to its getting there. DNA evidence cannot prove lack of consent.

Cases where DNA evidence figures prominently are popular with the sensationalist mainstream media, since they most often involve attacks by strange men on women and girls who can easily be portrayed as innocent and vulnerable. While these cases are not unimportant, it must be emphasized that they are few in number and that they are already those with the highest chance of conviction. The federal government must not pander to the myth of the dangerous stranger when, in fact, abuse is most often committed by an acquaintance, relative or intimate male partner. Moreover, the consistent failure of police forces to successfully find serial predators, as outlined in the Campbell report for the case of Paul Bernardo, does not point to the need for compulsory high-tech intervention, but to the systemic failings of policing in crimes of male violence against women.

In the few sexual assault cases where DNA evidence could indeed be useful, it seems likely that an attacker who realizes the strength of the scientific evidence against him will switch from “identity” to “consent” as his defence. Instead of claiming that he was not the man who attacked her, the accused will claim that she agreed to sexual contact. It has already been demonstrated in Canadian courts that “consent cases” are harder to win than are “identity” cases. Thus, increased use of DNA technology might well mean that cases of sexual assault would cost the government at least as much to prosecute as they already do with no increase in the conviction rate. In fact, heavy reliance by the courts on DNA evidence may make consent-related cases look “unconvictable”. Crown prosecutors could decide to try fewer cases where consent is the issue, and focus instead on those where identity is the issue –a minority of cases.

A DNA databank could only be effective if most violent crimes were committed by convicted repeat offenders. But most sex offenders have never been convicted. Men with the most privilege in society are the least likely to have been convicted, though we know from the experiences of women that those men are not less likely to have offended. At present, Native men, men of colour and poor men are jailed in Canada in numbers far greater than their proportion of the population. Because their DNA would dominate the DNA databank, using such a databank to identify perpetrators of crime would reinforce and even promote inequality in our justice system.

The use of DNA evidence involves increased dependence on scientific and professional expertise. When it comes to sexual assault, Canadian courts are demanding increasing levels of scientific corroboration of women’s testimony before convicting, and the dependance of the police and crown on DNA evidence will exacerbate this tendency. In addition, the need of specialist expertise makes it even more difficult for those with meagre or average incomes to have access to justice.

Moreover, increasing the weight given to scientific evidence subtly alters the notion of reasonable doubt. Reasonable doubt of guilt should be assessed based on all the evidence presented at the trial. DNA evidence provides such a high level of statistical reliability that other types of evidence pale in comparison. For example, blood type has often been used as part of the evidence accumulated against an accused person. The prosecutor might have argued that only 10 percent of the population has the same blood type as that of the accused and that found at the crime scene; this was considered a significant piece of evidence against the accused that might convict him, given other supporting evidence. DNA evidence has made such a correlation appear inadequate. Juries may want 99.99 percent likelihood of a match before convicting, since that is what DNA evidence offers. In cases where DNA evidence is not available– including cases where the victim did not receive medical treatment in a forensically equipped hospital within 72 hours of assault (common with sexual assault and especially child sexual assault by a family member), cases where the crime scene DNA is irreparably degraded and cases relating to consent — the usual evidence accumulated against the accused may look weak. In the eyes of the judge and jurors, the verbal testimony of witnesses, especially that of the victim, cannot carry the statistical reliability of scientific evidence, a bias which can only work against women in the majority of cases.

All levels of government in Canada have used the excuse of deficit reduction to cut public spending. Nevertheless, the federal government is planning a national DNA databank which would be extraordinarily expensive to establish and maintain. The reported cost of the storage portion alone of the UK databank for the first five years is more than $300 million (Can.). In Canada, it is estimated that currently $4000 is spent when DNA analysis is used in investigating a criminal offense. The RCMP estimates that the cost for DNA casework will be about $6 million annually, but another $5.8 million will be needed to build the biology portion of the new forensic laboratory. And in Ontario where there is no money for women’s survivor and advocacy organizations, an extra $2.2 million is being allocated to double the capacity of the DNA testing unit at the crime lab. Meanwhile, the federal Solicitor General’s office, though promising to deliver a national databank this fall, claims not to know how much it will cost.

These shortcomings are only some of the problems this technology poses. The compulsory seizure and storage of genetic information poses still larger problems for a democratic society.

Though biological evidence has been used by police and in trials in Canada for many years, DNA evidence is different in two important ways: it poses a challenge to standard privacy protections, and it is surrounded by a powerful mystique.

In the first instance, DNA provides far more than just identifying information about a suspect, an attacker or a victim. It also provides information about the genetic make-up of the individual–biological relationships, certain diseases or conditions and ethnic or “racial” identity. Genetic discrimination is a real and growing threat. Consequently, information about an individual’s DNA must be protected from search or seizure; but to date in Canada, only limited protections exist. Moreover, guarantees of confidentiality may not provide sufficient protection. Confidentiality can be breached by the granting of consent, but the pressures to “consent” to the release of such information can be intense. Finally, individual protection of privacy and research requirements of anonymity do not protect collectives from the effects of research which uses their genetic material. Pseudo-science that pursues the genetics of “race”, homosexuality or “criminality” endangers the equality rights and social status of collectivities without available remedy.

Moreover, DNA is the subject of a considerable mystique, which result in the technology being promoted with excessive enthusiasm and with minimal evaluation of its inadequacies and dangers. Like any technology, there are problems with the application of DNA analysis. Errors are being made. This is particularly true for the use of the databank because police will be trying to make a “cold search” — looking for a suspect by using banked genetic material. Sometimes a random close match will occur that is false. In addition, matches that should have been caught will be missed. Nevertheless, the federal government is moving ahead with the development of a databank without guidelines or regulations to ensure that an appropriate protocol is developed to minimize, although never eradicate, mistakes.

The institutionalization of punitive and coercive systems of surveillance and control most endangers marginalized members of society. Once Charter Rights are infringed to permit the seizure and banking of bodily materials and DNA, the possibility of an expanded use of such measures is very real. And women are quite likely to become targets of such expanded measures, even though DNA technologies are being promoted as in our interest. Already, women who are attacked are having their DNA examined, in order to distinguish it from the DNA left by the attacker. Women entering hospitals injured and in crisis following an assault are being pressured to submit to a blood sample with the encouragement that they will find justice through the use of DNA technology. DNA evidence is being falsely romanticized as a “quick fix” for the systemic problems that women face in dealing with the criminal justice system.

Conservative “law and order” groups are demanding harsher prison sentences and abolishment of the parole system and/or the Young Offenders Act, as well as reinstatement of the death penalty. Widespread use of DNA evidence to identify suspects is another such demand. Many countries, such as Australia, the United Kingdom and the United States, have already established DNA databanks; and the Canadian government is eager to remain at the “forefront” of law enforcement strategy. The direction that other countries are taking clearly violates individual rights. For example, in the UK, legislation paving the way for a national DNA databank was initially introduced as part of a larger bill aimed at increasing police power. In addition to proposing the establishment of the DNA databank, the bill granted police extended right in searching and detaining suspects.

In Canada, representatives of the police have been among the loudest proponents of the DNA databank. Police power is at the core of this debate, as has been illustrated by the ridiculously broad scope of the 1995 DNA warrant legislation. It permits forceful seizure of DNA samples for breaches of thirty sections of the Criminal Code, plus all “attempted” versions of the designated offences, including breaking and entering, failure to stop at the scene of an accident, arson and piratical acts. The federal government acknowledged in their consultation document that DNA evidence is most useful in cases where bodily fluids are likely to be exchanged. In light of this, it seems ludicrous to include, as they have in the warrant legislation, such a mixed bag of designated offences. Their inclusion contradicts the Department of Justice’s assertion that this bill is specifically intended to reduce the incidence of violent attacks and to aid in the prosecution of those cases.

In Canada there is already evidence that DNA technology is being used dangerously. The South Asian Women’s Centre in Vancouver stated publicly in 1995 that samples for DNA analysis have been required of landed immigrants wishing to sponsor relatives coming to Canada. Contrary to federal policy, this appears to be happening in at least Vancouver and Toronto, even when there is adequate documentation to prove familial relationship. In order to cover the costs of testing, the sponsor must pay more than $1000 per person involved. In these cases the biological samples are not being returned, nor is there evidence of their subsequent destruction. The evident lack of government responsibility in this matter, indicates the danger posed by the widespread use of DNA technology.

The federal government’s promotion of a national DNA databank and the recently introduced law governing the compulsory search and seizure of genetic information for suspects in criminal investigations are legislated infringements on individual rights which are neither necessary nor justified. The compulsory seizure of genetic information poses serious risks for individuals and collectivities. Moreover, the enhanced police power and expert-based judicial system contemplated by these measures will exacerbate existing inequities in the criminal justice system. Finally, these interventions cannot be defended in the interests of women subjected to male violence against women — survivors, advocates and service providers — do not believe that DNA databanks and compulsory search-and-seizure measures serve our interests. We will not have these actions taken in our name.