Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion articles on CNN.
This week, San Francisco District Attorney Chesa Boudin came forward with a stunning claim: That the San Francisco Police Department’s crime lab uses DNA evidence obtained from rape kits and entered into a DNA database to try to identify suspects in other crimes.
Police chief William Scott said Monday that “existing DNA collection policies have been legally vetted and conform with state and national forensic standards,” but also said the department will begin reviewing how it handles victims’ DNA in light of assertions made by Boudin, who said, “this practice treats victims like evidence, not human beings.” Boudin faces a June recall election and has been in conflict with police over use-of-force investigations.
Police had already arrested one woman, Boudin said, for a property crime after identifying her from DNA evidence collected after a rape examination she underwent in 2016 as part of a domestic violence case. The San Francisco Police Chief has said that, if these allegations are true, he is “committed to ending the practice.”
Boudin has not provided specific evidence to support his claim. And, Tuesday, during a news conference, he declined to provide more details and did not specify whether the woman arrested for the property crime is a victim or an alleged assailant in the 2016 case.
According to Boudin, this practice would violate California’s constitution, and potentially the Fourth Amendment of the United States Constitution, which protects against unreasonable searches and seizures.
Whatever is ultimately determined about the police department’s lab, the damage may already be done. If rape survivors believe that the evidence collected in their rape kits could be used against them, that’s one more reason on an already-long list to not trust the criminal justice system – or seek justice at all.
What’s so gutting about these allegations is that their very existence may be enough to deter some victims from reporting and getting the care they need. Many people only read headlines and soak up the top lines of various news stories, skimming over the details. And the top line here is: Police can use your rape kit DNA to prosecute you for future crimes. Even if that’s not exactly what’s happening – or even if it has been happening, but San Francisco puts a stop to it – that will be the takeaway. This is not an easily correctable mistake. It could have a long tail of repercussions.
It’s worth asking, too, how the San Francisco Police Department is using its resources. While the department was allegedly using rape kit DNA to find the perpetrator of a property crime, its clearance rate for rape cases was a measly 12.1% last year, according to department figures – meaning the perpetrators of close to nine out of 10 reported rapes in San Francisco were never arrested, let alone convicted or taken off the streets. That’s a rate far lower than the (also shamefully low) national average of 32.9%, according to FBI data. San Francisco’s rape clearance rate is lower than the clearance rates in other large cities including New York and Chicago.
At a deeper level, it’s also crucial to acknowledge that trust among rape survivors in law enforcement was, in many parts of the country, already on very fragile ground. The effects of these allegations from San Francisco will likely be felt in every single one of those communities as well.
We know that rape is already chronically underreported, with close to 80% of rape survivors never going to the police, according to a Justice Department analysis of violent crime in 2016. That suggests that the 207 people who reported rapes to the San Francisco police last year are likely a tiny fraction of the number of actual rape victims. And even that small minority still overwhelmingly does not see their cases cleared.
A number of police departments and crime labs also routinely mismanage or deprioritize rape cases. In California, some 14,000 rape kits are sitting untested. Rape survivors who report their assaults are often disbelieved, questioned inappropriately and treated callously.
For example, a 2016 BuzzFeed investigation found that police departments across the nation over routinely categorize rapes as “unfounded” after having done no detective work at all, or because they believe a victim didn’t fight back hard enough. This is a national problem: In Baltimore County, according to this investigation, 34% percent of rapes were categorized as “unfounded.” In Oxnard, California, it was 54%. In Pittsburgh, Pennsylvania, 30%.
A spokesperson from the Baltimore County Police Department told BuzzFeed News they defended their decision to label the cases as “unfounded” and that, while they look at every rape report seriously, they’re constrained by the narrow language of Maryland’s rape law.
The Baltimore chief of police refuted the claims, saying it wasn’t true that police didn’t investigate rape claims at all. In 2017, Maryland changed its rape law in response to the BuzzFeed investigation, removing the requirement that rape victims fight back. In Pittsburgh, the police chief responded to the BuzzFeed story by telling WESA, Pittsburgh’s NPR station, “Based on our research, it appears (Pittsburgh’s statistics) are higher than some and lower than some.” He continued, “It’s difficult for us to compare our stats to other agencies, as we can’t speak for them.”
A 2016 Justice Department report on the Baltimore Police found officers within the sex crimes unit claiming that all of their rape reports were false, and a prosecutor calling one victim a “conniving little whore” in an email to a police officer – to which the police officer responded with a laugh and “I feel the same.” The then police commissioner told The New York Times that “The challenge of interacting respectfully with victims of sexual assault is a challenge to our profession.” Without disputing the Justice Department’s findings, he said that when it comes to treating victims with respect, “we are getting better at it in Baltimore, and we are paying attention to it.”
And police officers have been allowed to stay on the force even when they are violent criminals themselves – so long as their victims were women they were married to, or children in their care. A 2019 investigation by a group of California news organizations found that close to 40% of police officers statewide charged with domestic violence crimes were able to plead their cases down to lesser misdemeanor offenses that, crucially, allowed them to keep their guns.
Many also kept their jobs, despite research indicating that rates of domestic abuse may be higher among police officers than in the general population. (The officers interviewed for the investigation denied committing acts of abuse, and several departments declined to comment; one denied the allegations that they didn’t take domestic violence charges seriously, and another said that in the case in question there was no conviction and therefore little the department could do).
And those are the cases where cops are actually charged. Many domestic violence incidents are never reported to police. And it stands to reason that the numbers are even lower when the abuser is a cop – who do you call when the violent criminal abusing you is a law enforcement officer?
The allegations out of San Francisco are abhorrent, and if they’re true, it’s laudable that the DA is dealing with them swiftly and that the police chief has pledged to look into them. But none of that will change the fact that using rape kit DNA to prosecute rape victims for other crimes is simply one drop in a sea of injustices that sexual assault and domestic violence survivors face at the hands of the very people the public pays to for protection.
It’s on every district attorney and every police department the nation over not just to correct the most egregious mistreatment of evidence, but to correct the egregious and systemic mistreatment of rape and domestic violence survivors police are sworn to serve and protect – including rooting out criminal offenders and dangerous misogynists from their own ranks.