New York Bill Aims to Stop Storage of Survivors’ DNA in Rape Kits

The bill, which is the first of its kind introduced in the U.S., focuses on how law enforcement stores evidence from victims of sexual violence

The contents of a Sexual Assault Forensic Exam (SAFE) also known as a ‘rape kit.’

The contents of a Sexual Assault Forensic Exam (SAFE) also known as a ‘rape kit.’ The kit includes swabs, materials for blood and hair samples and documentation forms for medical personnel to give to the police if the survivor consents to pressing charges. Lower Manhattan, NY. Wednesday, March 2, 2022. Riley Farrell for NY City Lens.

In February, a woman in San Francisco faced felony charges when her DNA was linked to a burglary. Law enforcement had access to her DNA because the woman, a rape survivor, provided her DNA in a rape kit in 2016. The burglary charge was dropped on Feb. 15, after the victim said the use of her DNA profile was a violation of the Fourth Amendment. 

Still, New York state Sen. Brad Hoylman’s legislative director Maia Berlow said her office was “appalled” with what happened in San Francisco and vowed to act. Hoylman introduced a bill on Feb. 24 that aims to stop the storage of victims’ DNA samples from sexual assault evidence kits in the state DNA identification index. The bill would also prevent such DNA from being used against the survivor in the future “as part of reasonable cause for arrest,” or in investigations.

 This bill addresses two main problems, said Berlow. The first issue is that when someone agrees to get a rape kit, they are consenting to a specific use of their DNA, which is to identify the offender. The second problem the bill tackles is the probable chilling effect on survivors’ comfort to report their assaults if they think coming forward could later incriminate them. 

A police officer enters the Criminal Courts Building, blocks away from the Crime Victims Treatment Center. The building houses the Criminal and Supreme Courts, the District Attorney, Legal Aid, offices for the Police Department and Department of Correction. Lower Manhattan, NY. Wednesday, March 2, 2022. Riley Farrell for NY City Lens.

“It’s a clear violation of people’s privacy and trust,” said Berlow, who was a sexual and reproductive rights advocate trainer for Amnesty International for four years before working in public policy.

Hoylman’s bill is the first state-wide measure in the country to address this tension between rape kit DNA storage and privacy. Holyman has a record of sponsoring legislation to support survivors. Hoylman carried the 2021 Adult Survivors Act, which created a one-year window for survivors over 18 to file a civil claim, even if the statute of limitations expired. The Adult Survivors Act passed unanimously

New York City has a checkered history when it comes to police surveillance, said Berlow. The New York City Police Department participated in “DNA dragnetting,” which is the nonconsensual collection of DNA samples from the public to find a match with DNA recovered at crime scenes. In 2019, the NYPD came under scrutiny by civil liberties advocates for stockpiling a database of 82,473 DNA profiles that included adults and minors who were arrested and questioned, but not convicted of crimes, according to data obtained by the Legal Aid Society. The NYPD said it erased DNA profiles of non-criminals from the database in 2020. 

Hoylman’s bill was introduced to the Senate and referred to the Internet and Technology Committee. The bill will be discussed after the budget deadline April 1, said Sen. Diane Savino, the Chair of the Internet and Technology Committee.

The bill, in Savino’s opinion, is not needed. She came to this conclusion after contacting the Office of the City’s Chief Medical Examiner, which oversees New York’s DNA database. The Office maintained that the perpetrator’s DNA is the only profile processed through the database, not the victim’s sample. Savino said she will speak to Hoylman about the bill’s necessity and its future.

“Crime victims should be confident they will not be victimized the way they were in California because New York proudly does not engage in this practice right now,” Savino said.

Berlow emphasized that current law as written does not explicitly protect victims. The goal of Hoylman’s bill is to clarify the prohibition of victims’ DNA storage in New York. Hoylman’s bill also prevents the use of DNA as a reasonable cause for arrest, she added, considering DNA could be accessed if law enforcement were to go directly to labs processing rape kits.

The Office of the City’s Chief Medical Examiner “maintains an unregulated database that we believe does not conform to state laws,” Berlow said. “Given the fact that they have broken promise after promise to advocates on the samples they’ve kept in the past, we feel legislation codifying this protection into law is important.”

Over 300,000 people were sexually assaulted in the U.S. in 2020, according to the Department of Justice’s 2020 Criminal Victimization Report. Regardless, less than 23% of those assaults were reported to police, which is even lower than 2019’s 34% rate of reporting. 

Survivors of sexual assault in New York City already face a “mixed bag” of encouragement and obstacles when they come forward with their trauma, said Crime Victims Treatment Center executive director Christopher Bromson.

“Our systems in New York have to do a better job of communicating with each other to make sure survivors are met with support no matter where they go,” Bromson said. “The DHS office and the police don’t always work together, but if victims go to the police, if they go to a hospital, if they go to the DA, if they go to a teacher – there should be a cohesive response.” 

CVTC, New York state’s first and most comprehensive rape crisis nonprofit for the past 45 years, fully supports this bill, said Bromson.

Executive Director for Crime Victims Treatment Center Christopher Bromson exhibits a Sexual Assault Forensic Exam (SAFE), also known as a ‘rape kit,’ in the nonprofit’s office in Lower Manhattan, NY. Wednesday, March 2, 2022. Riley Farrell for NY City Lens.

Bromson called the California case “shocking and horrific.” As soon as he learned about the situation in San Francisco, he called the NYPD. The city police said they never stored the victims’ DNA samples from rape kits, Bromson said. Nonetheless, getting a Sexual Assault Forensic Exam (SAFE) is an invasive, four-hour process, and there does not need to be even more fear associated with the kits, he added.  

“Believe survivors and give them as many options as possible,” Bromson said. 

Pamphlets are displayed at the Crime Victims Treatment Center’s office. CVTC offers survivors crisis intervention, individual and group trauma-focused therapy, legal advocacy, complementary therapy and psychiatric consultation. Lower Manhattan, NY. Wednesday, March 2, 2022. Riley Farrell for NY City Lens.