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Misleading view on DNA Database

Wed, Jun 22nd, 2011

Chris Asplen’s recent article which was published on our blog and in various newspapers last week, has created much dialogue, most of it positive, except in the case of one letter by a lady who believes that Chris ‘s article was simply an ’emotive polemic’. Click here to read her expert opinion on DNA as a crime fighting tool in SA…

These types of responses irritate me as they throw out allegations without any proof and offer no constructive alternative.

This is what I have to say in response to Ms De Haas, which I have sent to the Editor of the Witness, in which her letter first appeared:

Ms De Haas.
It is in fact you who has a misleading view on the value of a DNA Database as a crime fighting tool. Forensic DNA Databases throughout the world are being used effectively for the investigation, prosecution and deterrence of crime and nowhere in the world has a country reduced the scope of their DNA database precisely for this reason. Chris Asplen is in addition far more experienced on this subject than yourself, who has confused the issue of police corruption with the effectiveness of DNA evidence as one form of evidence in the investigation and prosecution of a case. For someone who claims to be such an expert on the subject, you are not even aware that in South Africa we already have a DNA Database (since 1998 in fact) and the new DNA Bill is seeking to expand and regulate the existing DNA Database in order for it to be used not only on a case by case basis but for criminal intelligence too, for instance to link seemingly unrelated cases or to detect serial criminal activity.

To ensure the successful development of our national DNA Database for this purpose, the proposed DNA Bill does no more than any other country in the world has done to regulate its DNA Database, namely, to determine from whom samples should be taken and how long DNA profiles which are obtained from those samples should be retained on the database. It proposes that trained police officials be allowed to take a DNA sample in the form of a simple cheek swab from suspects who have been arrested as well as convicted offenders, which again is in line with best international best practice and no different from a police officer performing a breathalyser test on a person suspected of drinking and driving in SA (which has never been contested as giving ‘too much power to the police’!).

Interpol, of which SA is a member, states that that the most efficient solution for DNA sample taking is a police officer and there is no other country in the world that requires registered medical practitioners  to take a DNA sample from suspects. The portfolio committee tasked with reviewing the DNA Bill will return from their study tour on which they are embarking upon this week, and they will be addressing all of the above issues in depth. On their return they will also be looking at the implementation of the DNA Bill insofar as far as how the Forensic Lab intend to handle the increased capacity that will impact upon it should the DNA Bill be passed.

For your information, The Forensic Science Lab has further recently decreased its backlog by 19,25% from 59 023 to 47 660 during the 2009/2010 financial year and declined significantly with a further 66% from 47 660 un-assigned entries on the 1st of April 2010 to 16 200 as on the 31st of March 2011, the lowest figure recorded since March 2009. They furthermore currently operate on a  35 day turn-around time.
It is also because DNA is such a strong form of evidence that it is so widely hailed as the gold standard for investigating crime. In the case of the two year old child who was brutally raped a few weeks ago , allegedly by her own father, DNA will be one of the strongest forms of evidence to convict or exclude the father, as the case may be — DNA will be the silent witness in this case Ms de Haas, as the child will not be able to give evidence herself now will she?

Despite your naysaying in a country which yes is beset with issues such as crime scene awareness and alleged police corruption and abuse, are you seriously suggesting that we ignore the value of DNA  where the rape of children and women is such a scourge? Imagine if we were all like you Ms de Haas, and simply through up our arms in the face of tangible and effective crime fighting tools and said ‘give it up, all police are incompetent and corrupt’. Is that an intelligent solution? Why don’t you make a real difference in this country madam, and draft a constructive response to the portfolio committee which proposes workable solutions to your concerns about the DNA Bill in order that together we can ensure that we maximise the potential of DNA and a DNA Database in SA? I hope to see you in Parliament, Ms de Haas, where I certainly will be, because I am prepared to stand up and actually do something to alleviate crime in this country. I am able to look into the face of that two year child who was raped and say that at least I am trying to do something to stop this.

Vanessa

Posted in DNA Project | 1 Comment »

Murder Mystery

Fri, Jun 17th, 2011

Using the Murder Mystery genre in a fun-filled way to look at the serious issue of how a national DNA database can help fight crime in South Africa

The venue was Scifest Africa 2011 in Grahamstown, the plot….murder. This was the murder mystery evening played out Scifest this year.

Members of the audience question Mr Rival's heavily pregnant girlfriend Ms Wanda Urjob

Members of the audience question Mr Rival's heavily pregnant girlfriend Ms Wanda Urjob


Imagine this- it was the end of a long day at the Science-4-All Mega-Xploratorium (S4-AMX), Mr Knowledge O.F. Csi, the conscientious security officer, was doing his rounds after the last visitors had left. He paused outside Dr Noall X. Plor’s office – his finely tuned instinct told him something was wrong. He knocked, no answer, yet he knew that Dr Plor had not left the building; cautiously he opened the door. The scene that greeted him confirmed his foreboding, Dr Plor lay spread-eagled across his desk, a broken, blood-smeared wine glass lay in front of his outstretched lifeless hand, a strange smell of burning wafted towards Mr Csi.

Switch to the auditorium at Scifest Africa 2011 in Grahamstown, where an expectant real-live audience of school learners, teachers and other members of the public had come to take part in a Murder Mystery evening. Also there was an excited cast of scientists and science centre friends from around South Africa, all would be-actors and extroverts who would act out the strange and twisted goings on of the S4-AMX on the murderous night in May.

Mr Cantseeit and Dr Fori Ensik each had their own suspicions

Mr Cantseeit and Dr Fori Ensik each had their own suspicions

Professor Valerie Corfield, who created this novel way to look at crime and the use of DNA profiling to solve it, explained to the audience the science behind popular series like “CSI” and “Solving it”. She talked about the power of a national DNA database in linking suspects with their crimes and securing convictions. She also asked the audience to think about some of the societal, legal and ethical issues this technology may raise. Suddenly, a cell phone rang urgently, a message was relayed to a visibly shaken Prof Corfield – she paused, and then announced the shocking news, Dr Plor was dead. A sob from one of the audience – it was Dr Plor’s wife Mrs Angela St Clare Plor – known by many as Angst – and played by Irene of Pretoria University’s Science Centre.

The audience relaxed as they realised that this was all part of the evening’s entertainment and they strained forward, it was time to start solving the crime. The players were introduced, everyone was delighted to hear that Mama Precious Ramotswe, of the Number 1 Ladies’ Detective Agency, was visiting from Botswana and would be happy to give advice. Curious, everyone went to the scene of the crime –which had been taped off by the well-informed and efficient Mr Csi. They surveyed the evidence and, armed with some background information about the characters in the Xploratorium that evening, they began to question the suspects.

It seemed that just about everyone had a motive to want to see the last of the hard drinking, womanising, financially insecure and increasingly inefficient Dr Plor. Had Mrs Plor had enough of his behavior? Why was she so friendly with Mr Ivor Grudge who was wrongfully dismissed from the Xploratorium? Was this Mrs Arch Rival’s chance to take over the struggling S4-AMX? Who was Mr Q. Rios Rival’s biological father and what was his pregnant and ambitious girlfriend (Ms Wanda Urjob)’s role in the events of the tragic evening? What financial shenanigans had the forensic accountant Ms Penny Fiscus uncovered and why was her partner the forensic scientist Dr Fori Ensik so jealous to finding her talking to Dr Plor earlier in the evening? Could Ms Twitter N. Bisted throw some light onto the jealousies simmering beneath the surface? Did socialite Mrs Phyll-Anne Thropicopolos and her security advisor Mr Hev E. Hitman know more than they were saying and did her friend the politician Mr Grey V. Trane have something to hide? Did the bitter and angry Mr I Les Cantseeit, who lost an eye at S4-AMX, get a chance to speak to Dr Plor? Why was the cleaning lady Mrs Busi Makleena so visibly shaken that evening?

Mr Hev E. Hitman shrugged a lot - he knew nothing

Mr Hev E. Hitman shrugged a lot - he knew nothing

The Murder Mystery was edu-tainment like you don’t get taught at school or in the science pages of the newspaper; Dr Fori Ensik could explain more about DNA forensics, Ms Fiscus could talk about forensic accounting and Mama Precious was there to share wisdom and common sense. Mr Grudge had an identical twin, he wanted to know how DNA profiling dealt with that and Mr Hev E. Hitman was not happy that his DNA was on a database already because of his previous “misdemeanors”. Mr Rival explained paternity testing and how he went about getting the samples (rightly or wrongly?) Mr Trane gave the politician’s answers to where South Africa’s national DNA database stands.

The audience questioned, probed, sought answers; small groups discussed their suspicions and went back to ask more – now and again pausing to sample some of the tasty snacks on offer! The suspects blustered, prevaricated, lied and pointed fingers at each other.

Finally everyone reassembled and wrote down who they thought did it, did they act alone, why did they do it and how did they do it? The would-be Horatio Cane’s ideas were checked, did anyone have it right? Yes, a few detectives had “sussed” it out correctly and justice would be served.

And you the reader will want to know those answers too – but you will have to come to the next Murder Mystery evening to find out who-dun-it…….

Professor Valerie Corfield

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Posted in Crime Scenes, DNA Detective | Comments Off on Murder Mystery

Raped again – by the system

Wed, Jun 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

Posted in DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Links, Newsletter | 9 Comments »

Police chief ‘must act on uncollected rape kits’

Tue, Jun 7th, 2011

This was reported yesterday on News24

Police chief ‘must act on uncollected rape kits’

2011-06-06 14:20

Johannesburg – Gauteng Police Commissioner Lieutenant General Mzwandile Petros must ensure all unprocessed rape kits are collected from Johannesburg hospitals by week’s end, the Democratic Alliance said on Monday.

“Gauteng Police Commissioner Lieutenant General Petros must ensure that all these kits are collected before the end of this week and submitted to the forensic laboratories,” DA Gauteng spokesperson on safety and security, Kate Lorimer, said in a statement..

“He must ensure that investigating officers responsible for these cases are summarily disciplined and that new investigators are placed on these cases.”

Lorimer was commenting on a report in The Star newspaper on Monday that hundreds of rape kits which help police gather evidence were “gathering dust” in hospitals, allowing rapists to walk free.

The kits, containing swabs of semen, blood and other evidence, lay uncollected in public and private hospitals.

As a result, rape cases were not investigated and court cases were delayed, according to the report.

“These rape kits are essential as they contain evidence that can convict rapists,” Lorimer said.

‘National tragedy’

“It is horrifying to think of the number of rape victims in Gauteng who have been denied justice due to bad policing practice. These survivors of brutal sex crimes are now being re-traumatised as they realise their cases have not been properly dealt with by the police.

“Rapists are usually multiple offenders. How many victims could have been spared the horrors of rape if kits had been collected and processed when a rape was initially reported?”

An investigation by the newspaper found kits at one hospital were not collected for four years, while the Chris Hani Baragwanath Hospital had run out of storage space as it has so many kits, some dating back to 2000.

In April two female police officers were arrested in Tshwane after 126 stolen rape files and evidence files were found in their possession and an employee at the Pretoria forensic laboratory described the problem of uncollected kits as a “national tragedy”, the report read.

Police were meant to collect the kits once doctors had finished treating the patients, an employee at the laboratory told The Star.

Posted in DNA Project | 1 Comment »

Could a LOCAL DNA Database work in SA?

Thu, Jun 2nd, 2011

I received a call from Chris Asplen last night following my recent enquiries into something called ‘LODIS’ – which stands for ‘Local DNA Indexing System’.  This has been used in certain areas in the USA and is literally, as it states, a small local database of DNA profiles which is used by local police departments to combat crime.

By way of example, the Palm Bay Police Department in 2008,  was recognised for its efforts in leveraging the power of DNA and DNA databases in a way that solved crimes quickly and efficiently enough to actually prevent future crime. By turning DNA profiles around quickly and by putting hit information into the hands of all officers immediately, the Palm Bay Police Department, with its local DNA databasing system (LODIS), effectively implemented DNA technology and databasing as an investigative tool, reports Chris.
The difference between this kind of database and a national one is that this database is local. This is based on the premise that most criminals don’t move too far away from the area in which they commit crimes.
What else did they do in Palm Bay? They took DNA voluntarily from a lot of suspects and were able to achieve quick turnaround times. Chris says that the key component to the LODIS concept is a commitment to quick turnaround time. In Palm Bay, their laboratory has results tested and in the database in thirty days. And as a result, police have a piece of evidence that actually helps them solve a case rather than simply confirming an investigation they have already solved after six or eight months of traditional—and more expensive—investigation based on evidence less reliable thanDNA. In other words, they are saying that it is more important to be local and fast.

Could this work in SA? Could we perhaps look to a province like the Western Cape and ask them to put something like this place? I wonder if it could work and what type of results we could get from it? It’s worth looking into….

What do you think?

Read more about LODIS here:

Posted in DNA Project | Comments Off on Could a LOCAL DNA Database work in SA?

What the criminals think

Mon, May 23rd, 2011

What do people who have their profiles on International DNA databases think?

Vanessa has recently written about the Darwin debate that we were involved in at UCT. The debate highlighted many social and ethical issues regarding forensic DNA databases. Interestingly, soon thereafter a friend forwarded me two relevant articles that looked at some of these issues from an entirely different perspective. Both articles discussed research into at what convicted persons thought about having their profiles kept on a forensic database. The first was written by Machado et al (2011) after interviewing 31 Portuguese prisoners. These prisoners were between 22 and 49 years of age and had been convicted of a variety of crimes including homicide, rape, drug trafficking, burglary and driving without a permit. The second study conducted by Stackhouse et al (2010) looked at a slightly different group of people – they interviewed 84 young people between the ages of 15 and 19. 72 had been arrested and had their profiles retained on the UK National DNA database. 58 of them had been found guilty of offences ranging from grievous bodily harm and assault to driving offences.

What was especially interesting about the findings of these studies was that the majority of people (those interviewed that have their DNA profiles on a national database) think that their profiles should be there. They also believe that even if someone is found “innocent” and is acquitted then their profiles should be retained on the database. So whilst politicians and human rights groups contend that profiles should not be kept on a database as this infringes on peoples right to privacy, prisoners argue that as the technology associated with forensic DNA analysis is so reliable and accurate, they would prefer for their profiles to be retained on a database. Their reasoning is that they believe that if police have their profiles on record then they can easily be eliminated from investigations following their release from prison. They felt that having their profiles on the database would actually contribute towards protecting them from police automatically assuming that as ex-convicts they would be involved with the perpetration of similar crimes. One young person claimed “If they’ve got your DNA on there just leave it, I mean he knows he ain’t a criminal so just leave it there…. Just to prove again that it wasn’t me.” Another person thought that having your profile removed may actually seem suspicious – “Why would you want it taken off, unless you were up to something…” This is in agreement with the British Home Office’s opinion that “persons who do not go on to commit an offence have no reason to fear the retention of the information”.

Both these articles referred to an earlier publication written by Prainsack and Kitzberger in 2009 where 26 convicted offenders in Austria were interviewed. All but two of the offenders viewed national DNA databases in a positive light. Their reasons included: (1) It helped to catch serious offenders such as rapists, murderers and paedophiles (2) They helped prove innocence (3) They forced police to carry out proper investigations and not to just arrest people who had previously committed similar offences. This study showed that many of those interviewed concurred with the fact that if they had committed an offence then they should be held accountable and that they deserved to be on the database– “If somebody does something, then they should bear the consequences”.

The results of these studies highlight the need to determine what all sectors of the public, including those already on a database, think about what profiles should be entered onto a database and when if ever that information should be removed. Food for thought …….what do you think?

Carolyn

Posted in Crime Scenes, DNA Project, Forensic Career, Latest News, Links, Newsletter | 2 Comments »

A Disappointing Debate – what do you think?

Mon, 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



Posted in Crime Scenes, DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Newsletter | 1 Comment »

Let’s debate this privacy issue for once and for all!

Tue, May 10th, 2011

UCT are hosting a debate on the Ethical Challenges of using a Forensic DNA Database in South Africa this evening, the 11 May 2011 as part of the Darwin Seminar Series they organise each year.

I will be debating the Social and Legal Implications of a National DNA Database against a member of MERAN (Medical Rights Advocacy Network), Poonitha Naidoo. MERAN submitted a number of objections to the Portfolio Committee last year regarding the draft DNA Bill – amongst their objections were that the DNA Bill represented an invasion of privacy, an abuse of police powers and was unethical.

The DNA Project obviously advocates for the urgent promulgation of the DNA Bill to fully maximise the potential  of a DNA Database as a crime fighting tool in SA. Whilst we are sensitive to certain concerns around the retention of DNA samples (as opposed to profiles) and the way in which a DNA Database should be managed, we believe that the draft legislation adequately retains an appropriate balance between the rights of individuals and the respect for privacy.

If you are in Cape Town today *the 11th May 2011, please join me in this critical debate on the social and ethical challenges of a National DNA Database in SA. We expect a large number of academics to attend, and hope to enjoy a lively, intellectual and intelligent debate on these issues.

When: 11/05/2011 6-8 pm
Venue: New Learning Centre, Health Sciences Campus, UCT, Medical Faculty
Phone: 0215570246
RSVP: linet@hippocommuincations.com

click here for more information

Please see our events page for other upcoming DNA workshops and events in May 2011.

with thanks

Vanessa

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Meet some of our team

Tue, 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

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Database for DNA key to full sex crime law

Wed, Apr 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.

Posted in Crime Scenes, DNA Detective, DNA Project, Latest News, Legislation, Links, Newsletter | Comments Off on Database for DNA key to full sex crime law

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