A Delicate Line: DNA Swabbing and Sexual Assault

Guest blogger and STSM supporter Scott Horn writes about the Supreme Court ruling on Maryland v. King, a controversial case that has caught the attention of many, from RAINN president and founder Scott Berkowitz to the ACLU. Horn describes the fine line that’s established by the positions of these two organizations and what this ruling means for cases of sexual assault.

In a contentious 5-4 ruling, the Supreme Court ruled on June 3 in Maryland v. King that it was constitutional for police to take a DNA sample from suspects arrested for serious crimes for use in solving older crimes. In a case where one of the Court’s most ardent conservative voices crossed to join the liberal wing in dissent, the delicacy of the line between security and privacy was shown.

The majority opinion compared the use of a DNA swab to the accepted practices of photographing and fingerprinting suspects; these minimally invasive practices provide the police with a method of identification and a means to link crimes where such evidence exists. Technology now allows us to use DNA evidence to help solve some of society’s most serious crimes – murder and sexual assault – where in the past those crimes may have gone unsolved and justice denied without such evidence.

The dissent, authored by Justice Scalia, attacked the majority for ignoring the basic principles of the Fourth Amendment protecting against unreasonable search and seizure. One could argue that no search is more invasive than one examining your very genetic makeup. But in the end, the arguments against DNA collection essentially come down to the slippery slope: why not collect DNA for even minor arrests, or even just as a matter of government identification?

Yet, there are protections in place to prevent the abuse of this system. Only those arrested for violent crimes are swabbed. Only specific genetic markers are examined, not the entire code. The database uses a blind ID system that masks the identity of the unsolved crime, requiring the investigating unit to seek more information directly. DNA samples are only kept active for those who are convicted of the crimes for which they were arrested and swabbed. In short, these swabs are only a tool to help the police, not a systemic means of identifying and tracking the entire population.

What does this mean for victims of sexual crimes? Many would certainly consider it a victory; it is now possible to sustain a database of DNA evidence from unsolved crimes, allowing police to compare DNA from their suspects to the database. King’s own conviction demonstrates the effectiveness of this technique: after being arrested for assault in 2009, his DNA was connected to an unsolved 2003 rape for which he was eventually convicted. Knowing that many people who commit sexual assaults are repeat offenders, it might now be possible to discover and charge these offenders before they can re-offend. Will it be perfect? No, but DNA swabbing might provide an opportunity to address and find justice in cases of sexual assault.