Archive for the ‘Legislation’ Category

 

Applications and Nominations: National Forensic Oversight & Ethics Board

Tuesday, February 25th, 2014

REF:MINP/01/14

CALLING FOR APPLICATIONS BY PERSONS WISHING TO SERVE AS MEMBERS OF THE NATIONAL FORENSIC OVERSIGHT AND ETHICS BOARD OR NOMINATIONS OF SUCH PERSONS

The Minister of Police hereby requests applications from persons from outside the public sector who wish to serve as a member of the National Forensic Oversight and Ethics Board or nominations of suitable persons to serve as a member of this Board. The applications by persons, or nominations of persons,

The National Forensic Oversight and Ethics Board is established in terms of the Criminal Law (Forensic Procedures) Amendment Act, 2013 (Act No. 37 of 2013) that was assented to by the President of the Republic on the 27 January 2014. In terms of the Act, the Minister of Police is required to appoint the National Forensic Oversight and Ethics Board.

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DNA Act a monumental step forward for SA

Friday, February 14th, 2014

The promulgation of the new DNA Act in January was a “monumental step forward” for South Africa as the nation battled high levels of crime, but an easy implementation should not be expected, writes Natasha Odendaal for Engineering News, 13 February 2014.

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No need to question the validity of DNA evidence

Tuesday, November 12th, 2013

Whenever a crime is committed and DNA used to assist in the identification of the offender, the question of whether the DNA found at the crime scene is the same as that of the criminal must be asked. In other words, whose DNA it is?

As a geneticist, and having just returned from Interpol’s International DNA Users’ Conference in Lyon where internationally renowned forensic experts spoke repeatedly of the value of DNA Databases used for criminal intelligence purposes, I was astonished to read the article in the Times today (“Whose DNA is it anyway?“, Times LIVE, November 12) which quotes Prof. Muller as saying that “the probability that someone else would have the same DNA profile as that of the sample obtained at a crime scene was one in 2 million”. In South Africa our forensic science laboratory analyses 9 different locations in the DNA molecule to determine a forensic profile and obtain probabilities in the region of at least 1 in a billion.

After the passing of the legislation, South Africa will be using technology which is even more reliable as they will be analysing 15 locations in the DNA and will then obtain probabilities of another person, other than the suspect, having the same profile as that found at the crime scene of between 1 in 10 billion and 1 in an octillion – this is an extremely exact, valid and reliable science! Furthermore, it is incorrect to say that there is a 5% chance that two people listed in even a small database would have the same DNA profile. The value of DNA evidence lies in the fact that no two people share the same DNA (except identical twins) – that is if sufficient locations on the DNA molecule are analysed, which indeed they are if 9 or more are considered.

To answer the question can forensic DNA analysts determine whether the suspect is, beyond reasonable doubt, the source of the DNA left at a crime scene – yes, absolutely. What remains is however to determine how the crime was committed and whether in fact the suspect committed the crime. These are questions that only a court can decide after the investigating officer has provided the court with information on ALL forms of evidence in the case.

For example, were there any eyewitnesses, does the suspect live in the same geographical area, what was the possible motive? DNA evidence is invariably only one form of evidence in a case, but with the chances of anyone else having the same profile being very close to zero, it is extremely compelling.

In a country that has the highest incidence of sexual assault in the world and where a child is raped every 3 minutes, who could possibly argue against the fact that our DNA database should be expanded to include people suspected and convicted of this type of offence? Add to this the well-known fact that 90% of rapists re-offend… a DNA database of previous offenders will provide investigators with valuable leads in cases where there is no known suspect and assist in crime resolution.

The new DNA Bill cannot be passed soon enough.

In order to reduce crime in South Africa we need to make use of this cutting edge technology to ensure that criminals are held accountable for their actions.

Dr. Carolyn Hancock (PhD Genetics)

Director: DNA Project

If you want to have your say, read how…

Sunday, May 19th, 2013

You have until the 30th May 2013 to stand up and be counted in South Africa’s fight against crime.

Every day innocent people needlessly become victims of violent crimes in our country. Most of these are committed by repeat offenders. By sending a strong message to the South African Government to pass legislation that enables law enforcers to collect DNA from arrestees and convicted offenders we can catch criminals sooner. That means you can help prevent most of these crimes, save more lives, and provide more protection to the innocent. Sign up today to show that you believe that the proposed DNA legislation, officially known as The Criminal Law (Forensic Procedures) Amendment Bill B09-2013 currently before Parliament should be made law. If passed, this law will revolutionise crime scene investigation in South Africa in line with best international practice and increase the number of convictions secured.

Stand up and be counted!

Stand up and be counted!

The Portfolio Committee on Police has invited all interested people to submit written comments on the Criminal Law (Forensic Procedures) Amendment Bill by no later than the 30 May 2013. You can also sign our petition by clicking on the following link Sign our petition here and show your support to Pass the DNA Legislation!

If you believe that our Government should pass this vitally important legislation, then please show your support and  draft a submission to Parliament. Written submissions addressed to the Portfolio Committee on Police, should be directed to the Committee Secretary, Babalwa Mbengo, and posted to P. O. Box 15, Cape Town 8000, or e-mailed to bmbengo@parliament.gov.za or faxed to 086 665 5444.  You must indicate your interest in making a verbal presentation to the Committee in your submission, should you wish to do so.

You may wish to include in your submission some or all of the following points:

As a concerned South African citizen, I welcome the introduction of the Criminal Law (Forensics Procedures) Bill into Parliament and support its promulgation into law as a matter of extreme urgency to help fight crime in our country. The passing of this Bill, in its current form,  into law will help identify serial offenders at an early stage of the investigation as well as link perpetrators to their crimes through an objective and reliable science. It will also ensure that the innocent are exonerated.

  • The existing DNA Database in South Africa which has through default, evolved under the governance of the Criminal Procedure Act of 1977, is a wholly inadequate tool for regulating the use and retention of DNA profiles on a National DNA Database. The new Bill ensures that the future of the current DNA Database is expanded and managed in a regulated and appropriate manner.
  • I endorse the provision that makes it mandatory to take DNA samples from suspects at the time of arrest and believe that it should extend to all arrestees and not just those arrested for schedule one offences.
  • It is imperative to ensure that all convicted offenders DNA samples are taken retrospectively and before their release from prison.
  • I further support the provision that trained Police Officers be allowed to take non intimate DNA samples from arrestees and convicted offenders. The collection of a non-intimate DNA sample by a specially trained police officer from an arrestee or convicted offender ensures that a sample is quickly and easily uplifted. The “invasiveness” of the methods of obtaining DNA samples (rubbing a swab around the person’s mouth, or obtaining a drop or two of blood from a pin-prick to a finger), are no different to having a breathalyser taken on suspicion of drunken driving.
  • The DNA Bill ensures the creation of a DNA database in South Africa that will function effectively not only as a tool for gathering inculpatory evidence, but also for gathering exculpatory evidence, to appropriately eliminate suspects and so safeguard against wrongful convictions or other miscarriages of justice.
  • The way in which the DNA profiles are stored on the DNA Database, namely by using markers from the non coded regions of a person’s DNA ensures that no genetic disposition or other distinguishing feature may be read from that profile other than gender. The retention of the profile, in that form, is the same as a fingerprint, and therefore its retention does not impact on the privacy of the individual in any way whatsoever.
  • The creation of a Reference Index, Crime Scene Index and Convicted Offender Index ensures that DNA profiles are appropriately stored and managed.
  • The DNA Bill adequately retains an appropriate balance between the rights of individuals and the respect for privacy. The new Bill has been carefully drafted to ensure that  the DNA Database is maximized to its full potential in combating and preventing crime in South Africa, whilst still ensuring that it has minimal impact on the civil rights of its citizens.
  • The Bill importantly calls for an Oversight Committee to be formed which will monitor the implementation of this legislation. The Oversight Committee will monitor the collection and storage of samples, the performance of the Forensic Science Laboratory and the National Forensic DNA Database. The Board will ensure compliance with ethical and privacy issues and ensure minimum quality standards are set and adhered to. Over time the Oversight Committee will establish the effectiveness of the legislation in the fight against crime and review the Bill in order that any necessary changes are made to maximise the efficiency of the use of the Database as a criminal intelligence tool.
  • The  DNA Bill shows that the Government has explicitly tackled the scourge of crime in South Africa by demonstrating that if there is any perceived intrusion on an individual through the retention of their DNA profile, it is outweighed by a demonstrated and long awaited  interest in protecting its citizens against serious and violent and crimes.
  • In order to ensure the successful implementation of this legislation, I believe that First-on-crime scene police investigators, as well as key personnel involved in crime scenes, including the private security and emergency services sector, must be trained in how to identify, collect and preserve DNA evidence at crime scenes, so that critical evidence can be collected and fewer cases will be at risk of being jeopardised due to the mishandling of evidence. In addition, officers of the courts must be educated in how DNA evidence technology works to corroborate a case against a suspect or exonerate a suspect quickly, thereby decreasing delays in court.
  • The public interest which is served by the new Bill, is important, especially in cases of violent crime where DNA matching has been proven  to be invaluable in matching a suspect to a crime scene. I believe the Bill, when passed,  will have a profound impact on the criminal justice system in South Africa.

New DNA law will make Brazil safer and save lives

Wednesday, May 30th, 2012

Brazil’s President Signs Historic DNA Database Legislation Designed to Solve and Prevent Violent Crime

President Dilma Rousseff and the Brazilian Congress have this month passed a law which  requires that DNA profiles from convicted criminals must be included in the national Brazilian DNA database.   Brazil is one of a growing number of countries that have passed  laws designed to expand and regulate their National DNA Databases.  The DNA database will match these profiles to evidence from unsolved violent crimes.   Countries with similar programs have seen extraordinary increases in the amount of crimes both solved and prevented.   President Dilma Rousseff signed this historic legislation on 28 May, 2012.

Brazil's President Dilma Rousseff

Brazil's President Dilma Rousseff

The legislative sponsor is Senator Ciro Nogueira, who became impassioned to pass the law upon learning of its power to prevent violent crime throughout Brazil.  In August of 2011, Senator Nogueira brought the surviving family members of serial murderer Marco Trigueiro to visit with congressional leadership in Brasilia and promote the law.  Trigueiro terrorized Belo Horizonte in 2009 by brutally murdering five women.  “Most of the Belo Horizante murders could have been prevented if this law had been in place.  I am proud of these families for their courage to come to Brasilia to tell their story, and I am proud of my fellow members of Congress who voted to pass this law and make Brazil a safer place,” said Senator Nogueira.

Brazil becomes the 56th country to pass DNA database legislation, and the third in South America (Chile 2007; Uruguay 2010).  “With a population of nearly 200 million, and a strong DNA crime lab foundation, Brazil is positioned to become the largest DNA database in Latin America and one of the largest in world,” said Tim Schellberg, President of Gordon Thomas Honeywell Governmental Affairs, a firm that consults globally on DNA law and policy.  Schellberg expects Brazil’s new law to create a wave of similar legislation throughout Latin America.   “Brazil has great influence throughout Latin America.  Other Latin American countries have been waiting to see what Brazil would do.”

“Brazil’s citizens deserve protection using the most accurate law enforcement identification tool available.  With a DNA database program, Brazil will solve crimes faster, prevent future crimes and save lives,” said Ms. Sepich, founder of DNA Saves, a non-profit association which was established to educate policy makers and the public about the value of forensic DNA. The association was formed by Jayann and David Sepich in late 2008, marking the 5 year anniversary of the senseless murder of their daughter, Katie. DNA Saves is committed to working with every US state to pass laws allowing DNA to be taken upon arrest, and to provide meaningful funding for DNA programs.

SOURCE: DNA Saves

Groundbreaking New Training Program Developed

Monday, August 15th, 2011

DNA Project team

DNA Project Team

Members of the DNA Project gathered together in Cape Town last month for the 2nd Annual DNA Project’s Trainers Workshop. The objective of this year’s workshop was to critically assess the DNA Awareness Campaign we have been running for the past year to identify whether any changes or improvements needed to be made to the programme, based on the field experience of our Trainers who have been hosting workshops throughout South Africa.

The second and more exciting reason for the gathering was to ‘brainstorm’ around the development of the innovative new ‘Train the Trainer’ program which the DNA Project wants to initiate as phase two of its DNA Awareness Campaign.

Currently, the way in which we have been disseminating DNA Awareness to the private security sector, guarding services, emergency services, community police forums, the justice system and general public, has been through directly contacting these sectors of the community and offering to host free DNA Awareness workshops at their respective premises.  We believe, however, that a more effective approach to ensure DNA Awareness training would be to introduce DNA Awareness training at Trainer level, which enables those organisations which conduct their own training to provide ongoing DNA Awareness training at their premises at their own convenience. We believe that by including DNA Awareness training as part of their basic crime scene management training, it will ensure that they are comprehensively taught about the value of crime scene preservation. In addition, no matter what the turnover of staff is within a company, each new employee will automatically receive DNA Awareness training at entry level. By creating DNA Awareness as an industry standard, these  sectors of the community will be able to offer this as an added value service to their existing protocols.

In other words, instead of ‘fishing’ for the community we would like to teach these sectors  how to ‘fish for themselves’.

How will a Train the Trainer workshop differ from our basic DNA Awareness Workshop we currently offer?

The Train the Trainer workshop will consist of a full day’s training, whereby an instructor from the DNA Project will impart the basics of the science behind DNA forensics and crime scene preservation. These Train the Trainer workshops, as with the DNA Awareness workshops, will be sponsored by the DNA Project and thus will be free of charge.

Course Outline

  • A simple summary of DNA, the techniques of DNA profiling and the benefits of a National DNA Criminal Intelligence Database in crime investigation.
  • The responsibilities of the First Officer attending the crime scene with potential DNA evidence will be covered.
  • The Trainers will be taught how to identify the potential sources, locations and limitations of DNA evidence so that they can pass on this valuable information to Trainees during crime scene training.
  • An overview of the correct handling and packaging of samples from crime scenes, suspects and complainants and who should be doing what.
  • Trainees will be provided with information relating to the legislation that regulates the use of DNA as an evidential tool.
  • The Trainees will briefed as to what actually happens in a South African Forensic Lab  and how much of “CSI” is fact and what is fiction.
  • The central message of our DNA Awareness Campaign will be covered, and the reasons why these six steps are so important will be explored , namely:

“DNA CSI”

D = DON’T TOUCH

N= NOTE & RECORD

A = ASSIST OTHER OFFICERS

C = COMFORT & SUPPORT VICTIMS

S = SECURE THE CRIME SCENE

I = INSIST NO-ONE INTERFERES

For more information, or if you interested in attending a Train the Trainer workshop or DNA Awareness workshop, please contact Maya Moodley at the DNA Project on maya@dnaproject.co.za or tel (021) 418 0647.

Raped again – by the system

Wednesday, June 8th, 2011

The article written by Chris Asplen has now been published in Gauteng (Saturday Star, 11 June 2011) , KZN (The Witness, 10 June 2011) and the Western Cape (Sunday Argus, 5 June 2011). The Editor of the Saturday Star took it one step further and commented on Chis Asplen’s article in his Editorial. This is what he had to say:

The editorial refers to the article which has appeared in all three major provinces in South Africa, which was originally written and published in an international Forensic Magazine. It is an opinion piece written by Chris Asplen, who was recently in South Africa, and which visit obviously drove him to write this article. It is uncomprisingly direct and honest and very hard hitting insofar as how the international forensic community view our MP’s. I wonder if any of the members of the portfolio committee for police who are ‘reviewing’ the DNA Bill, read this about themselves? And if so, how did it make them feel? I personally, would not like to have the blood of these and future victims on my hands. Perhaps, however they will prove Mr Asplen wrong, and actually get on with the job at hand this year? Well, we live in hope, as do all the rape survivors and future victims…

Forensic DNA Database legislation urgently needed amid rape epidemic

I am a former prosecutor in the United States where I was the advisor to two US Attorneys General on the use of forensic DNA technology and where I was the Executive Director of the US Department of Justice’s National Commission on the Future of DNA Evidence.  My specialty as a prosecutor was the prosecution of sex crimes committed against children. I left the Department of Justice about 10 years ago and began consulting internationally on the integration of forensic DNA evidence into criminal justice systems. I have been fortunate to help over 35 countries realize the potential of DNA technology to protect victims – mostly women and children – from the horrors of rape. I have spent equal time and energy to protect  the innocent – mostly men – from the tragedy of wrongful conviction with the very same technology.

When I first started working abroad, my presentations would often start with a rhetorical question that went something like this:  “What is the most important factor influencing the success of forensic DNA databasing?  Is it the quality of the laboratory performing the analysis? Is it the training and education of the police ensuring that they collect valuable evidence?  Or perhaps the skill with which prosecutors can leverage the probative value of DNA to support their victims’ testimony?” But of course it was a loaded question.  I had my own answer. “It’s actually none of these…” I would say. “The most important factor influencing the potential effect of DNA in any criminal justice system is what the law allows you to do with it.”

Now I am a little biased here.  I am a lawyer by training, by education and probably by nature. But I have a pretty good argument.  You can have the best, most advanced laboratory system in the world, the most rigorous quality assurance procedures, and send specialized crime scene analysts to every crime scene – but those factors mean little if the law does not allow you leverage the full potential of the technology and the evidence.

Nowhere is that dynamic more tragically clear than in South Africa.

I first traveled to South Africa 10 years ago. I left the Department of Justice less than a year earlier and had been invited to participate in a meeting of Interpol’s DNA Expert Monitoring Group in Pretoria.  It was my first trip to the continent so to say that I was excited is an understatement. I did not, in all honesty though, harbor great expectations regarding what I would see from the standpoint of South Africa’s use of DNA technology. But when I saw what the South African Police Service (SAPS) was doing, I was nothing short of astounded.  The SAPS had an automated system for DNA analysis that was unique in the world.  As we toured through the laboratory I realized that it was, at that time,  the most advanced forensic DNA testing robotics system I had ever seen.  I was so impressed that I literally walked out of the lab, got on my phone and called my former colleagues at DOJ trying to convince them to bring Johann and his colleagues to the US so that they could explain what they were doing.  South Africa was going to be a model, not only for Africa, but perhaps for the world.  They had crime statistics that proved South Africa to be one of the most sexually violent places on the planet and they had the capacity and technical sophistication to hit back hard.  South Africa was going to prove the power of DNA like nowhere else.

The automated DNA Robotics system at the Pretoria Forensics Lab

The automated DNA Robotics system at the Pretoria Forensics Lab

Boy was I wrong.

I have just returned from another trip to South Africa, a trip I have made many times since my first visit. And to be clear, it is not the police that have failed, nor is it the technology, nor is it the laboratory personnel.  Rather, ten years after South Africa created one of the most important laboratory infrastructures in the world, the politicians in the South African Parliament have still failed to give police the legal authority to save literally thousands upon thousands of lives with DNA.  Ten years later and South Africa, in contrast with more than 50 countries around the world, still has no legislation allowing for the establishment of a forensic DNA database.

South Africa is a strikingly beautiful country from its coast line at the Cape of Good Hope to Krugar National Park to the wine regions of Stellenbosch.  It is also the economic anchor for sub-Saharan Africa.   It has a technology portfolio that includes a nuclear weapons program (and the wisdom to subsequently dismantle it) a 2002 Noble Prize for work in microbiology and the first human to human heart transplant was performed in South Africa.   And most importantly, it is a country which engineered one of the most significant triumphs of human spirit and potential – the non-violent elimination of apartheid

But South Africa is also a country that, according to the United Nations, ranks second for murder and first for assaults and rapes per capita. 52 people are murdered every day there and the number of rapes reported in a year is around 55,000.  It is estimated that 500,000 rapes are committed annually in South Africa. In a 2009 survey, one in four South African men admitted to raping someone.  Even more insidiously, South Africa has one of the highest incidences of child and baby rape in the world.  It is a country where the belief exists that intercourse will cure or prevent HIV/AIDS and where child rape is used as a method of retaliation against someone else for a perceived wrong.  Children are murdered and body parts used for “traditional” medicinal remedies.  And in a country also cursed with epidemic rates of HIV/Aids, rape takes on an exponentially tragic dimension.

The world holds no shortage of human tragedies.  But most of those tragedies persist because there are no clear, identifiable fixes.  Feeding entire starving countries from overworked, infertile land or generating clean, lifesaving water from dry, parched earth are heavy lifts.  Wars and the conflicts that lead to catastrophic loss of human life have been with us since the beginning of time.  But when it comes to fighting back against serial rapists and pedophiles? I have examples from every corner of the planet of exactly what works and just how well.  There is nothing better at getting rapists off the street, at protecting little girls and, by the way, at protecting those who would be wrongly accused and convicted of those serious crimes than DNA databases.

And what exacerbates the tragedy tenfold is the fact that, unlike many countries with the wisdom to implement DNA databases fully, South Africa already has all the other components necessary to leverage the power DNA technology -the laboratory system, the finances, the education and the commitment by police. There are no other excuses, nowhere  else to place responsibility.

As someone who works regularly in other peoples’ countries, I don’t “call out” or criticize foreign  officials easily or often.  But on a scale unequaled anywhere else on earth, hundreds of thousands of children’s lives are sacrificed because of the failure to act by politicians in South Africa.  The Parliamentary Portfolio Committee responsible for the legislation that would give police the ability to immediately begin taking rapists off the street has avoided acting on the law for years.  The legislation sits in Committee while the worst sexual violence statistics in the world continue to pile up.   Except they are not really statistics. They are terrified woman and little girls staring into the face of horrific violence and evil while they are likely infected with HIV – three more of them just in the time it took you to read this article.

Chris Asplen

Executive Director, DNA 4 Africa

Casplen@DNA4Africa.org

A Disappointing Debate – what do you think?

Monday, May 16th, 2011

For those of you who may have attended the debate at UCT last week Wednesday, you may share my frustration and disappointment insofar as my adversary failed, in my opinion, to address the issues at hand which were: the societal and ethical implications of a National DNA Database in South Africa. Whilst I commend Ms Naidoo for standing up against police brutality and corruption, this was not the topic of debate for that evening, nor was it in any way relevant to the question of which types of profiles should be held on a DNA database and why.

Poonitha Naidoo, Vanessa Lynch & Carolyn Hancock

Poonitha Naidoo, Vanessa Lynch & Carolyn Hancock

As such,  I believe we lost a valuable opportunity for serious, logical and rational debate over an issue which may have far reaching consequences in South Africa . The problem is, to date, no-one seems to be able to come forward and present an argument against the implementation of a criminal intelligence DNA database, which makes any sense at all.

Whilst I admit that I may be biased in favour of the value of a DNA Database for crime resolution (in conjunction with the vast majority of countries in the world with developed DNA Databases!), I am not unfamiliar nor insensitive to some of the privacy concerns of human rights groups. It must also be noted that the DNA Project concedes that the actual DNA reference sample (as opposed to the DNA profile) should be destroyed once a full DNA profile has been obtained and, that there should be an exit mechanism in place to expunge profiles which have not resulted in a conviction following arrest.

As I see it, there are five areas of concern amongst civil rights activists, which I raised for argument in the debate, namely:
1. WHETHER A DNA SAMPLE AND ITS PROFILE SHOULD BE KEPT ON A DATABASE,
2. AND FOR HOW LONG;
3. HOW THESE SAMPLES SHOULD BE OBTAINED FROM INDIVIDUALS;
4. WHETHER THE PRESENCE OF A DNA PROFILE ON A DATABASE REPRESENTS AN INVASION OF PRIVACY;  AND
5. HOW WE SHOULD BALANCE THESE CONFLICTING INTERESTS WITHIN THE FRAMEWORK OF OUR CONSTITUTIONAL RIGHTS IN SA.

In the first place we must ensure that we differentiate between a DNA sample and a DNA profile. 
The physical sample consists of the bodily substance collected from a crime scene or person; the DNA profile is the digitized information that is stored electronically on the Database. Whilst the sample holds the genetic profile, once a DNA profile has been obtained, the DNA sample can be destroyed, provided that it is not a crime scene sample which is evidence and must be kept in the same way as other crime scene evidence.
Of note is that the DNA markers which make up the digital profile in South Africa, are specifically chosen for forensic use because they do not reveal any details about age, ethnicity, race, appearance or medical conditions. You therefore cannot link a DNA profile to an individual’s medical history nor does it point to genetic disorders or susceptibilities. In fact a mughsot tells you more about the person than a DNA profile; as too does your id number. If then we concede that the physical sample is not retained, but only the digital profile, and if access and use to it is strictly confined, then the intrusion into privacy is not particularly grave, while the societal gains in solving and deterring appalling crimes in South Africa through a criminal intelligence database, are very significant.

Vanessa Lynch debating at UCT last week

Vanessa Lynch debating at UCT last week

My second point was in relation to the way in which a sample is collected. Currently, due to the interpretation of the 1977 Criminal Procedures Act, a registered nurse or medical practitioner has to take a full vial blood to generate a sample for DNA analysis. The draft DNA bill calls for the collection of a simple cheek swab/pin prick by a police officer.  No country in the world mandates that samples be taken by blood or medical personnel – Why? It is exceedingly expensive, dangerous and scientifically unnecessary and it has certainly never been challenged as unconstitutional or invasive. Ms Naidoo perceives this act however as a grave invasion of privacy. But, I argue that the mere act of taking of samples from suspects is a reasonable and  proportionate response to serious crime.

Given that this technology is here to stay, as a crucial means of solving crimes, the question is… who should be on the database and why? It is generally agreed, that convicted offenders and crime scene profiles should be retained. The main argument is then around the retention of such material in cases where a suspect is subsequently acquitted or the charge is discontinued….. which leads us to the next point…

Our contention is that there should exist a retention framework for profiles which do not result in a conviction. In the pivotal case of S vs Marper – The European Courts of Human Right forced a change of policy in England that the holding of a DNA profiles from persons regardless of outcome of arrest was disproportionate – a retention framework was proposed which is still being debated.
 Whilst the value of retained profiles from suspects who were subsequently acquitted has been shown to be considerable, there is no other country which allows a blanket retention policy of such profiles, but a retention framework makes sense.
Significantly, in South Africa, a recently passed law allows searching across all the fingerprint databases – HANIS, E-NATIS and AFIS. If we accept that the fingerprint is a unique identifier, just as the DNA profile is, then we are currently already allowing supposedly ‘innocent’ fingerprints to be searched for the purpose of generating a hit or match. We must remember that the presence of a fingerprint on a database does not constitute a criminal record – it is for reference and comparative purposes only. If a hit is generated then it is considered a LEAD in the investigation – it is not an automatic guilty verdict as many seem to suggest. With the high rate of recidivism in SA, it may be proportionate to consider a retention framework whereby a profile is kept for a specified period (in the draft Bill, 5 years has been proposed) after which, if there is no further arrest during that time, it is automatically expunged.

Perhaps then Civil liberties activists seem mostly opposed to the development of a national database on the grounds that state officials might somehow be able to abuse ordinary citizens by using the data that would be contained in it? The argument that information can be abused pre-supposes that the DNA profiles reveal genetic information which is commercially valuable. This is untrue. It is simply a unique identifier. There is no realistic way I can think of in which a government can abuse a Database nor has any case ever been reported of this occurring. But perhaps some reader out there has different views on this, and if so, I would be interested in hearing them. Moreover, the draft Bill provides for strict safeguards and penalties to ensure that DNA profiles are used only for the purpose related to the detection of crime, the investigation of an offence or the conduct of a prosecution.

If a Database is assiduously maintained and strictly controlled in order to strengthen our Criminal Justice System (CJS) and help our forces of law apprehend and prosecute habitual offenders, then we should support the expansion and development of this crime fighting tool in a country which is being held to ransom by a small minority of criminals.

The last point brings me to duty of the State to protect the public from crime. However, it is recognised that in doing so, the State also needs to protect certain ethical values such as liberty, autonomy, privacy, informed consent and equality. Sometimes these obligations conflict and then a balance must be struck between the right to privacy and the right to safety and security. In appropriate circumstances, some of these rights need to be restricted in the public interest and to protect the rights of others.  Legislation should therefore seek to find an adequate balance between the interests of society and the interests of the individual. If we agree that the purpose of the CJS is to permit everyone to go about their daily lives without fear of harm to person or property, then surely it is in everyone’s interest that serious crime should be properly investigated and prosecuted.  As one of the most important obligations of the state is to protect the rights of its citizens, a DNA Database does this and this more than makes up for any minor privacy rights violated by mandatory DNA databasing. In other words, freedom of action has to be restricted in appropriate circumstances – i.e. the response of the state to take action to prevent people from killing or harming one another will inevitably involve some restriction of freedom of action. Laws by their very nature do this (restrict freedom of action) but are in place to ensure that the greater good is achieved.

My final point on the issue is a Utilitarian  one – in other words, what is the VALUE of the science? 
In a country which has one of the highest crime rates,  lowest conviction rates and highest rate of recidivism in the world- the value of the science, in this case, the DNA database,  is very, very high.
So, let us not sacrifice the good for the perfect – if we put proper safeguards in place and maximise the full potential of this powerful investigative tool, we will be doing a good thing – which surely is an aim worthy of pursuit?

What do you think?

Vanessa



Meet some of our team

Tuesday, May 3rd, 2011

We recently appointed another trainer and assistant in the KZN area, Grant Godsmark, a  young and dynamic Genetic Hons graduate from UCT, with a passion for DNA. This weeks blog entry has been written by Grant and looks at the reasons why he thinks we urgently need DNA

Grant Godsmark at a Training Workshop

Grant Godsmark at a Training Workshop

legislation in this country. As it stands, the latest information indicates that the Portfolio Committee’s “study tour” of the UK and Canadian DNA labs  is scheduled for the 24th of June 2011 to the 10th of July 2011. That is a total of 15 days. Wow. Is that not a long time to spend viewing two labs? How do you feel about this? Read how we feel! Let us know what you think, by posting a comment or writing on our Facebook page.

This is what one reader had to say:

“I am working for a Rape Centre, every day I see the people these ministers are suppose to protect. Small children are raped by serial rapist who roam the streets and cannot be arrested or sentenced because the DNA project does not get the urgent attention it needs!!! Why is everything in this great country of us backwards, is money and freedom to do as they wish so important to our leaders. PLEASE wake up and start looking after the innocent!!!!”

Here is what Grant has to say:

Is South Africa missing out on the benefits of using DNA to help apprehend criminals?

We have all watched an episode of CSI, or other detective programs, and so we know how important evidence left at the crime scene can be. In every episode the criminal is caught with the help of evidence (often DNA) left at the scene of the crime. Although things happen really fast on TV….. all the forensic techniques that are shown are actually used by police to help solve crime. In reality DNA profiling is successfully used every day by police forces all over the world to apprehend and convict criminals. So you may be wondering: What are we doing in South Africa?

Well, you will be pleased to know that we have state of the art equipment that is used to analyze DNA evidence found at crime scenes. This equipment includes the world’s first fully automated system that can be used for high volume forensic DNA analysis.  But despite access to this amazing technology, South Africa is not maximizing the use of DNA as a forensic tool. One reason for this is that we do not have the necessary legislation to allow our police force to use the technology to its full potential. In South Africa current legislation does not allow for all people arrested, or convicted of a crime to have their DNA profile placed on the National DNA Database of South Africa (NDDSA). If this was to happen then when police do not have a suspect, and the perpetrator is been previously arrested or convicted, a comparison between the crime scene profile and profiles on the database may provide police with a suspect. Amendments to the current legislation have been proposed which will allow for all evidence collected at crime scenes to be compared to the database and possible suspects to be identified. Click here for more details.

This system is currently being used in USA, UK and Europe with great results. In the UK, in 70% of cases where DNA profiles from crime scene evidence are loaded onto the database, there is a match with someone already on the database. This means that when police have no suspect they are given a lead in the case just by searching the database. Imagine how effective this would be in South Africa where most of our criminals have committed many crimes – we just need to get them on the database once!

Unfortunately, the parliamentary committee tasked with considering the changes in legislation has been dragging their heels since 2009. In July they plan on going on a fact finding mission to the UK and Canada before considering implementing this legislation. This despite the fact that DNA databases have been effectively used by these countries since 1995. So…..why should South Africans, who live with some of the highest crime rates in the world, not be able to benefit from this incredible technology? The reason is simply that a small piece of legislation is the final hurdle keeping us from convicting the people responsible for crimes like murder and rape in South Africa. We all need to fight for this legislation to be passed as soon as possible so that we can make criminals accountable for their actions. We need everyone to support the proposed changes in legislation and to put pressure onto the committee to pass the amendment. All South Africans will then be able to breathe a little easier knowing that if something happens to our loved ones, the SAPS will finally be able to do the best they can to apprehend these criminals.

Written by Grant Godsmark

Database for DNA key to full sex crime law

Wednesday, April 13th, 2011

The below article makes for interesting reading insofar as demonstrating the power of a DNA database as well as the implications of not having proper legislation in place – it illustrates that an expanded DNA Database strengthens criminal investigations which in turn provides a safer environment, safeguards the rights of law-abiding citizens and improves trial efficiency. This not only brings comfort to victims and their families, and promotes fairness and justice but also clears innocent suspects and reduces miscarriages of justice.. . What is most poignant is the writer’s observation that long documentation processes, poor administrative efficiency and bureaucracy which have prevented the enactment of proper DNA legislation, are tantamount to being “accomplices” to the murder of the young girl in this story, and many more to come.

How tragic too, that as I write this, I feel that I am preaching to the converted (ie the people who read this blog), when the real ‘accomplices’ in South Africa hold us and future victims to ransom by their lack of efficiency, bureaucracy and ignorance in failing to pass the DNA legislation so desperately needed in SA.

Database for DNA key to full sex crime law

By Sandy Yeh

A junior-high school girl in Yunlin County was recently raped and murdered. A repeat sex offender who had just been released on parole is suspected of committing these acts. As a result of the ensuing public anger, we may finally have a chance to break through the blockade of so-called “human rights groups” that are opposed to amending the Sexual Assault Crime Prevention Act. If approved, judges will be able to follow the example of Megan’s Law in the US and decide to publish the names and photos of repeat sexual offenders as well as the nature of their crime in order to avoid similar tragedies.

Following several child assault crimes that have highlighted the flaws of the act and the rise of the “White Rose” movement in September last year, the legislature is now expected to pass the amendment. Still, the information and monitoring of sex offenders alone will not be enough to prevent them from committing crimes again. Nor will they put an end to sex assault crimes. Just as the “protection order” in the Domestic Violence Prevention Act will not prevent victims of domestic violence from being abused, complementary measures are required. In this case, the most important measure is building a DNA database on sex offenders.

A US newspaper recently reported a similar sexual assault case that happened in Maryland in July 2003, though the suspect was only arrested in Wisconsin years later. Just like the Taiwanese girl, the victim was 13 years old at the time of the crime. The difference is that she survived and the police could take complete samples of the suspect’s DNA. It took some time, but they were able to make a breakthrough seven years later thanks to the strengthening of the DNA database as a result of legislative amendments. When a suspect was arrested for selling marijuana and ordered to submit a DNA sample, a match was found.

In 1994, the US passed the DNA Identification Act to provide legal grounds for DNA collection. In 2000, it passed the DNA Analysis Backlog Elimination Act, authorizing the FBI to integrate DNA databases in different US states and organizations, including a DNA database of officially convicted criminals, missing people and their families, and unidentified corpses. In 2005, it passed the DNA Fingerprint Act, integrating criminals’ DNA and fingerprint data. Last year, it passed the Katie Sepich Enhanced DNA Collection Act to impose DNA collection on all suspects except in the case of a few misdemeanors. By gradually enhancing the laws, the US’ DNA database grew from 460,000 items in 2000 to 2.03 million in 2004 and 8.64 million last year. The number of cases solved as a result has increased more than 100-fold.

Katie Sepich, at the age of 22 was raped and murdered

Katie Sepich, at the age of 22 was raped and murdered

These results were achieved thanks to the US’ employment of modern technology. By strengthening its criminal investigation with the help of the expanded database, the US can now provide a safer environment, safeguard the rights of law-abiding citizens and improve trial efficiency. This brings comfort to victims and their families, and promotes fairness and justice. Furthermore, the strengthened DNA database and improved matching could clear innocent suspects and reduce miscarriages of justice.

Just like the obstacles to the amendment of Taiwan’s Sexual Assault Crime Prevention Act, the amendment of the DNA Sampling Regulations has been delayed since passing its first reading in the legislature in 2008. When the public says the long documentation process, poor administrative efficiency and bureaucracy were “accomplices” to the murder of the girl in Yunlin, one wonders if anyone has looked into whether the legislature is the reason why the law remains stalled.