Tuesday, 10 February 2009

DNA testing

I can't tell if I'm being obtuse or simply becoming a redneck - but at first glance, I'm not completely opposed to increasing Police powers to collect DNA. Currently, Police can require a DNA sample only from those suspected of serious crimes, and only with the consent of a judge. Under the proposed law change, anyone accused of a serious offense could be compelled to give a DNA sample when charges are about to be laid. If the charges are dropped or the accused is acquitted, the DNA sample will be destroyed, but it can be matched with samples collected at crime scenes in the interim.

The proposal has civil liberties activists up in arms, and I can understand why. There seem to be two possible reasons for this: one, DNA sampling is an invasion of privacy; and two, it could be misused by Police. I'm going to leave aside the misuse by Police argument, because I figure that any technology or power can be misused by corrupt or incompetent cops. And, for the time being, I'm going to ignore other practical issues like the cost of DNA sampling. So the question becomes: if we give the Police the benefit of the doubt and assume they'll use DNA samples by the book, could the benefits to public welfare outweigh the infringement of civil liberties?

On Sunday night, I watched 'Until proven innocent', a dramatisation of the story of David Dougherty. This case both is and isn't an advertisement for using DNA as a crime-solving method - although the results of Dougherty's sample cleared him of the rape he was accused of, they were misrepresented in court by the prosecution. The serial rapist responsible for the crime, Nicholas Reekie, committed several other abductions and rapes before being apprehended. Reekie also had many prior convictions for other, less serious crimes. If the Police had had the ability to match Reekie's DNA earlier in his criminal career, it's possible that much of his sexual violence might have been prevented, as well as the ongoing suffering of his victims.

Of course, it's easy for someone like me, who barely passed school cert science, to speculate on the miracles of DNA technology and assume a perfect world of Police officers with impeccable integrity. Still, it's possible that extended Police powers to collect DNA, with the correct checks in balances in place, might be one preventative tool than can be used against sexual assault and other serious crimes.

I look forward to the thoughtful opinions of THM readers...


anna c said...

Your whole argument rests on the idea that catching and convicting criminals is a good thing. I know that an almost universal belief, and I can't say I'm immune to it at times, but to claim that the invasion of privacy is worth it, you've got to establish a benefit from it.

I simply don't believe that catching and convicting rapists stops rape. It may stop a particular rape, and I'm hesitant to dismiss that because I know the effect on those involved are so huge. But if we're looking at a particular incident, the same could be said for so many maybes - an accident of town planning, the time a bus arrived... I'm possibly being facetious here, but I'm making the point that stopping a particular incident isn't a strategy.

I think the DNA collection - or anything which gives the police additional powers, really, reinforces a system based on identification of criminals as some distinct class of people and a vengeful punishment of them. I'm not sure I would be so bold as to say that that is a contributory factor towards rape, but it certainly isn't a postive contribution towards the sort of society I want to live in, and I'm really dubious about there being any benefit from it.

I feel so much more could be achieved by the police - and everyone else - assuming those who have been raped are not lying unless proven otherwise, even if that weren't to result in actual convictions.

This is all much larger than the scope of this post, I know, but I feel this may be a valid argument resting on shaky foundations.

Julie said...

I can see the possible benefits that you outline Anna, and it is tempting. Ultimately though I agree with anna c - I don't think the benefits would outweigh the possibility of abuse and the invasion of privacy. My faith in a police force that until not too long ago contained Clint Rickards is just not strong enough for this much power.

And then there's the practicality. DNA testing labs are already massively under-resourced. The sheer scale of this widening of powers will increase that problem massively. To the point where justice may be so delayed that it is deemed denied and trials cannot proceed. Often DNA is but a mere part of a larger picture of evidence pointing to guilt (or innocence), and perhaps shows like CSI lead us to imagine it is a smoking gun that it isn't really?

Thanks for raising the issue Anna, I think it does create some challenges for feminists. And props for getting those links going, you'll be embedding YouTube clips in no time! :-)

Psycho Milt said...

The benefits of this are actually pretty obvious, whether for rape or any other crime: deterrence of premeditated crime is based pretty directly on the crim's assessment of the likelihood of getting caught. What happens to that likelihood if your DNA's on file? Even beyond that, what happens to your willingness to risk the pointless sort of minor offences that crims now just don't give a shit about, if that's going to put your DNA permanently on file? Seems like a pretty damn good set of benefits to me.

The downside is a loss of privacy for convicted criminals. I don't see how, in civil liberties terms, this loss of privacy even approaches the seriousness of the loss of liberty we subject convicted criminals to, by putting them in jail (not to mention the fact that jail eradicates privacy almost completely) - so far, with no outrage from civil liberties groups. It's also unclear how this invasion of privacy is worse than taking fingerprints, unless we're talking about allowing the govt to do stuff with that DNA other than simply identify people.

Tor Hershman said...

Here's some DNA @ YouTube


Tor Hershman said...

Oh, there's a song entitled "Rape" by Ian Hunter that you may find interesting.

Anna said...

Thanks for the comments, guys. I certainly accept the practical difficulties around processing the sheer volume of DNA samples that a law change would create.

I'm actually not arguing for the deterrent effects of the law, though, or for the existing penal system. I doubt there would be a deterrent effect, to be honest - if the death penalty doesn't deter, I don't see why DNA sampling should.

And I don't think it follows that identifying a serial offender should invoke a punitive response. It could invoke a rehabilitative or preventive detention one - so I don't think it need be done in a spirit of vengeance.

Nor do I think it implies that other anti-rape measures can't or shouldn't also happen (although I can see a danger that it could be interpreted that way).

What do you lot think? I'm keen to hear more of your thoughts!

Alison said...

As a culture, I think we certainly have a misplaced confidence in DNA evidence. I've just listened to a scientist on RNZ National pointing out the fact that fingerprints and DNA profiles work completely differently; we know fingerprints are unique, and there is no process necessary to establish a match - fingerprints are taken from the crime scene, from the suspect and matched. DNA profiles, on the other hand, are created in a lab, from a tiny piece of evidence that is VERY easily contaminated.

My concern isn't with the police abusing power (at least any more than usual), it's with the belief that DNA profiling can solve all crimes.

I don't think it will have a deterrent effect either. By the time you've removed all the criminals who were under the influence of drugs, alcohol and rage, and thus don't rationally assess that possibility, and all the criminals who acted in desperation (whether or not that desperation was reasonable), the criminals who actually assess risk and benefits are probably pretty few and far between.

Psycho Milt said...

I wouldn't underestimate the deterrent effect. Penalties, including the death penalty, have been shown often enough to be no deterrent, but plenty of research suggests a high likelihood of being caught is a deterrent. So that's a pretty significant benefit. On top of that, there's the benefit that if we catch criminals and jail them, they're not committing further crimes against us while they're in jail - that's also a significant benefit.

Against that, arguments that DNA testing doesn't offer a perfect solution don't carry a lot of weight. No feature of law enforcement does offer perfect solutions. In this case, it may not deter crimes of rage, desperation etc, but a lot of crime isn't in that category. It may not guarantee identification of the perpetrator, but it makes identification a lot more likely, and so on.

Anna said...

I completely agree with Alison that trying to understand crime (including sexual assault) as something that criminals undertake following a cost/benefit analysis is misguided.

I also agree that the high level of faith we put in DNA is also potentially dodgy. But it necessarily doesn't follow that it's not useful - rather, DNA evidence should be properly used by Police and scrutinised in court, and we shouldn't forget that it is only a detection tool (one of many), rather than a prevention tool.

In an ideal world, the catalysts to rape which are found in a misogynistic culture wouldn't exist. However, they're there (for now at least), so measures are needed to both prevent and deal with sexual offending. If expanded DNA powers had caused Nicholas Reekie's offending to be detected early, enabling some sort of appropriate rehabilitative measures to be set in place, would it still be a bad thing?

Julie said...

I go back to anna c's point in the first comment:
I feel so much more could be achieved by the police - and everyone else - assuming those who have been raped are not lying unless proven otherwise, even if that weren't to result in actual convictions.

In the context of rape DNA is used to put the offender at the scene of the crime, as it were. But in most rapes the victim knows the rapist. So identification should not really be an issue in those cases, if we can find a better balance between presumption of innocence for the accused and a default setting of believing the victim must therefore be a liar.

Anna said...

I'd agree that identity is unlikely to be an issue in most rape cases (and overemphasising it plays into the hands of those who are reluctant to accept the commonness of rape, and regard it as 'real' only when it involves being dragged into the bush by a stranger).

In the David Dougherty case, however, identity was as issue - the wee girl, in addition to the trauma of the violence, has suffered undeserved guilt that her misidentification of her attacker, done in good faith, ended up in the conviction of the wrong person. Barring an idiotic comment made by the Police in 1997, there was never any doubt that this little girl was raped - but she was young, possibly drugged and enormously traumatised, so it's quite understandable that she should make a mistake. So while the mistaken identity issue may not be common (although drugs and alcohol must sometimes make for identification difficulties), it can clearly be catastrophic. The Police's behaviour in the Doughterty case can't be excused by DNA evidence or lack thereof, of course.

This is straying away from the original point, and I'm playing devil's advocate to some extent ... but I do think it's an important philosophical issue, and a very interesting one!

Mikaere Curtis said...

Under the proposed law change, anyone accused of a serious offense could be compelled to give a DNA sample

Actually, the proposal is for anyone charged with an imprisonable offence. And that is many more offences than those you might consider "serious".

I/S sums it up nicely: it contravenes the BORA.

I would not be surprised to see some police abusing this power - charging someone with something like "Disorderly Behaviour" means they can do a DNA fishing expedition. Hell, I could even be charged for carrying my Leatherman pocket knife (carrying a knife in public is an imprisonable offence).

How about this: instead of DNA fishing expeditions, the police actually get on and do some detective work - they are actually very good at it.

Anna said...

OK you lot, you've won me over. :-)

Anna said...

...although, I will add that trawling in the case of DNA matching is different to trawling with, say, a phone tap. When you listen to someone's phone calls, you get a wide range of very personal stuff that likely has nothing to do with a suspected crime. A DNA test is more specific in the info its able to elicit.