December
11, 2002, 8:45 a.m. Big
Sister Wants Your DNA
The feminists
rethink the Central Park jogger case — and privacy.
By Christine
Stolba
he
rape and beating of a young female jogger in Central Park in April 1989
garnered national attention not only because of the randomness and sheer
brutality of the act itself, but because it quickly came to symbolize
city dwellers' fears of crime and the perceived ineffectiveness of New
York City law enforcement in preventing it. Reacting swiftly to public
opinion, police rounded up a crop of suspects — young men, all minorities
from Harlem, who had gone on a "wilding" spree in the park that
evening, beating and robbing many in their path. Five of them confessed
to the crime; four were convicted and sentenced to 5-10 years in prison,
with the fifth serving 5-15 years. But recent revelations have thrown
those convictions into doubt, and in the process revived debate over false
confessions, law-enforcement tactics, and the volatile politics of race
and criminal justice in New York City. The use of DNA evidence in criminal
prosecutions has taken a central place in this debate. In 1989, DNA evidence
was still relatively new. Today it is widely used. The fact that we can
say with certainty that none of the five men convicted in the Central
Park case raped the jogger is due to DNA testing. Matias Reyes, a convict
serving time for another rape and murder, confessed to the rape in Central
Park; testing revealed that his DNA — not that of the convicted five
— matched that of the semen found on the victim.
Not
surprisingly, critics are calling for a thorough investigation of the
city's District Attorney's office and urging the court to vacate the rape
convictions of the five men convicted for the attack. At the forefront
of critics has been the National Organization for Women, which has called
on the U.S. Department of Justice to launch an independent investigation
of the case. "As feminists we have a stake in making sure that real
truth-seeking investigations and prosecutions of crimes against women
occur — not ones that are hasty, incomplete, media driven, and play
on racist stereotypes," the New York chapter of NOW said in a statement
in October.
In
1989, NOW made the jogger into a symbol of violence against women. Feminists
were some of the loudest voices in the swelling chorus of public opinion
calling on New York's law enforcement community to find the culprits as
swiftly as possible — and were credulous when the confessions came
in. Some observers have interpreted feminists' current interest in the
issue as a belated mea culpa for their earlier eagerness to see someone
— anyone — put behind bars for such a highly publicized sexual
assault. Looking back on NOW's actions, Lee Che Leong, a self-identified
feminist, wrote recently in Newsday, "in their rush to judgment
in the Central Park case, feminists became complicit in a system that
allowed the guilty man to roam free and brutalize four other women, one
of whom was killed."
Leong's
criticism was meant to highlight NOW's lack of attention to issues of
race; unremarked, but of greater concern, is that NOW is also using the
Central Park jogger case to push a proposal that poses a broader and more
serious threat to civil liberties — feminists are urging lawmakers
to expand DNA databases. "The Central Park jogger case shows that
legislation is needed to build a comprehensive DNA database to catch criminals,"
Alex Leader, the executive director of the New York City chapter of NOW
told a reporter earlier this month. "We've learned a lesson from
this case." Other NOW leaders have encouraged the expansion of such
databases. Last spring, endorsing a congressional bill that would appropriate
$250 million to spend on DNA analysis of rape kits, NOW President Kim
Gandy said, "It is critical that DNA forensic evidence be collected
and processed, and then linked with other state, local and national crime
databases." Similarly, an article in NOW's February online newsletter
praised a Texas law that would allow law enforcement to collect DNA samples
from those accused of sex offenses at indictment — not conviction.
In
their call for the creation of DNA databases, NOW is arriving a bit late
to the party. All 50 states already have criminal DNA databases, and the
FBI runs a national database (CODIS) that links them and includes federal
criminals as well. DNA evidence is a powerful tool for crime fighting
and, when used properly, DNA databases can assist in investigations. It
is useful and necessary for states and the federal government to construct
DNA databases of violent convicts for the purposes of solving crimes.
The trend, however, is to expand these databases to include an increasingly
broad swath of the population — not merely violent offenders, but
all felons; not merely adults, but juveniles; and not merely those convicted
of felonies, but anyone arrested for one. Beginning in January, for example,
the state of Virginia will take DNA samples from anyone arrested for a
felony. Nationwide, DNA databases suffer from a serious case of mission
creep.
Such
expansions pose threats to civil liberties. DNA banking of convicted violent
offenders is a good thing, but compulsory DNA sampling of the accused
changes the nature of the relationship between citizens and the state.
No longer are we innocent until proven guilty. Worse, the expansion of
DNA databases creates new opportunities for genetic criminal profiling
in the future — and the likelihood of DNA-style defenses. A recent
report by the British Nuffeld Council on Bioethics suggested that, as
our knowledge of behavioral genetics grows and scientists identify genetic
traits that encourage antisocial behavior, courts might consider a criminal's
genes as a mitigating factor in sentencing, just as they now weigh environmental
influences such as a history of poverty or child abuse.
These
databases also pose serious challenges to privacy. Genetic information
is extremely personal and revelatory. Although most states have passed
some regulations controlling access to the information stored in their
databases, the regulations are inconsistent. Few states have implemented
effective quality control and privacy protections for the original DNA
samples (the blood samples and cheek swabs) they store, nor have they
passed strong penalties for misuse of the information in the databases.
As well, the claim that law enforcement uses only "junk DNA"
for identification purposes — and thus cannot find out information
about an individual's genetic conditions — is not the whole truth.
A few years ago, a team of British scientists found that markers of a
person's susceptibility for type-1 diabetes could be located on the standard
DNA fingerprint of "junk DNA" used by law-enforcement officials
for identification. It is not impossible to imagine that one day we will
be able to locate more hereditary conditions on "junk DNA" —
information that could be used for discriminatory purposes.
Finally,
there are questions about the effectiveness of these DNA databases. Despite
the frequent stories one reads of how a "cold hit" on a DNA
databases led to the solving of a decades-old crime, in fact, as USA
Today recently reported, no one is actually tracking how many
of these cold hits lead to convictions. Given the dangers these databases
pose to privacy, at the very least we should make an honest accounting
of their usefulness before expanding their reach to broader segments of
the population.
Feminists
are not the only group to embrace uncritically the expanded use DNA databases,
of course, and their enthusiasm is consistent with their tendency to enlist
the power of the state on behalf of their ideological goals. But DNA is
peculiarly powerful. Feminists frequently complain about discrimination:
in the workplace, in the locker rooms — even, ridiculously, on the
nation's golf courses. But their notions of what constitutes discrimination
are picayune compared to the possible abuses of genetic information. What
NOW — and the public — should be demanding is not the rapid
expansion of DNA databases, but a careful assessment of their usefulness
and risks. Bringing criminals to justice is a goal we should all embrace;
the cavalier expansion of as powerful a tool as DNA databases is not.
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he
rape and beating of a young female jogger in Central Park in April 1989
garnered national attention not only because of the randomness and sheer
brutality of the act itself, but because it quickly came to symbolize
city dwellers' fears of crime and the perceived ineffectiveness of New
York City law enforcement in preventing it. Reacting swiftly to public
opinion, police rounded up a crop of suspects — young men, all minorities
from Harlem, who had gone on a "wilding" spree in the park that
evening, beating and robbing many in their path. Five of them confessed
to the crime; four were convicted and sentenced to 5-10 years in prison,
with the fifth serving 5-15 years. But recent revelations have thrown
those convictions into doubt, and in the process revived debate over false
confessions, law-enforcement tactics, and the volatile politics of race
and criminal justice in New York City. The use of DNA evidence in criminal
prosecutions has taken a central place in this debate. In 1989, DNA evidence
was still relatively new. Today it is widely used. The fact that we can
say with certainty that none of the five men convicted in the Central
Park case raped the jogger is due to DNA testing. Matias Reyes, a convict
serving time for another rape and murder, confessed to the rape in Central
Park; testing revealed that his DNA — not that of the convicted five
— matched that of the semen found on the victim. 
