DNA sweeps are wrong
Due process can be cumbersome, but it is essential
A 29-year-old woman who has languished in a vegetative state since she was about 3 years old gave birth to a baby boy on Dec. 29 at a private Arizona nursing home where she had been cared for nearly her whole life.
From all accounts, no one knew she was pregnant until she went into labor.
Because she is physically and mentally incapable of giving her consent to sexual relations, Phoenix Police are investigating the case as a rape.
Within days of the birth, authorities were collecting the DNA of all male employees of the nursing home. Not a few of the men. Not half of the men. All of the men. Police haven’t said how many except to describe the group as “large.”
The facility has about 75 beds.
The nursing home didn’t object to this DNA dragnet. In fact, a spokesman for parent company Hacienda Healthcare said the facility welcomed the action by the police and had considered in the wake of the assault conducting either voluntary or compulsory genetic testing of its staff but company lawyers warned it would be illegal either way.
No worries. Police investigators — also known as “the government” — collected genetic material from everyone of the correct gender, without discrimination. In this instance, some discrimination was warranted.
In this instance, every man working at this nursing home was a suspect by virtue of “suspicion by association.” And because of this proximity, police were able to obtain warrants for the collection of the DNA, which means they convinced a judge such a step was reasonable and warranted. (Under the Constitution’s Fourth Amendment, law enforcement must have a reasonable suspicion that a person is involved in a crime before initiating a search or seizure. Collecting genetic material is considered a seizure.)
Just because an Arizona judge signed off on the warrant doesn’t mean he was correct in doing so.
Proximity shouldn’t be enough justification to draw blood, swab a mouth or pull a hair follicle. In fact, proximity can mean nothing. In 1998, police in Maryland sought DNA samples from 400 male workers at a county hospital where an administrator was raped and strangled. No match was made in what became a cold case. Some dragnets do snag a killer. A nursing home rape in 1999 in Massachusetts was closed after police drew blood from 32 men and nabbed their guy.
But, a price is paid. Without significant probable cause, compelling the collection of genetic material chips away at the right to due process. Additionally, privacy rights are being trampled by inconsistent standards, state to state, on how long genetic material is kept and on whom.
Community outrage at this crime in Arizona is inflamed, understandably. The proper response is bootson-the-ground detective work. When a field of suspects is winnowed by legwork, then there’s reasonable and justifiable cause for invasive testing.
A DNA sweep may be easier but easy isn’t best. When crimes are committed, we want to collar the bad guy. But ours is not a justice-at-anycost society.