DNA Evidence and Familial Matching

DNA“THE son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son.”[1]

Regardless of your religious affiliations, the relentless progress of modern DNA science has the capacity to challenge and undermine this immensely sensible and vital moral, philosophical and legal foundation. DNA familial matching is the process of establishing the identity through a person’s blood relative. I will not go into the science behind this, suffice to say that we share half the alleles (DNA) with our father and mother. This material splits again with each relative, so we share a quarter of our DNA with our brothers and sisters and one sixteenth with our aunties and uncles. DNA testing is the process of identifying the loci for a distinct ‘fingerprint’ to be established that is unique to the individual.[2] Due to improvements in science today, it remains all too easy to cross-check the unknown DNA of an offender and compare it with a database to search for his or her relatives. This new form of surveillance could occur each and every time unknown DNA is found at a crime scene. It represents a Tower of Babel – a genetic panopticon where all those who are merely related to a convicted offender remain under the watchful eyes of the State.

Despite the fact that the technology is well within the capabilities[3] of the Victorian Police Forensic Services Department, there has been little public debate on familial matching impacting on our rights. This technology is available now and yet our legislature hasn’t debated or even remotely considered the issue.

The use of familial matching has significant consequences on individual privacy. The prospect that a relative may become a ‘genetic informant’ may have the capacity to break down trust within a family. If widely implemented, familial matching would focus the attention of police on families who are merely related to an offender. In the US, there have been concerns that this will create a form of racialised justice that disproportionately impacts on African American and Hispanic minorities. In Louisiana for example, a rape victim provided her DNA information to police that then subsequently led to the arrest of her brother.[4]Such concerns have significant weight here considering that in a 2011 study by the Australian Bureau of Statistics, Aboriginal and Torres Straight Islander’s comprise 26% of the prison population. Because of this overrepresentation in the penal system, Aboriginal and Torres Straight Islander’s would endure a far greater and disproportionate amount of genetic surveillance than the Caucasian majority.

dna-evidenceIn 2010, the Victorian Privacy Commissioner raised the additional spectre that strict existing procedures for taking DNA samples from suspects could be easily circumvented by taking samples from a relative instead. For example, the police could use the biological material taken from a pap smear as evidence against a relative.  But it is when we examine familial matching and the use of DNA databases that the impact on privacy becomes truly Orwellian. Between 2010-2011, Australia’s national DNA database, the NCIDD, held 602,317 DNA samples. Assuming that each offender has two to three blood relatives, the genetic spread of the database could creep across into the lives of roughly an estimated 1.2 – 2.4 million people. While these figures are based on simple arithmetic, they demonstrate the sheer number of Australians who would be subject to genetic surveillance. These figures would inevitably increase with the future rapid developments of science. It is foreseeable that the future will bring the ability to match second-degree relatives, like uncles, aunties, grandparents and half siblings. It is imperative that we therefore examine the policy, legal and ethical implications on our democracy before familial matching is adopted in Australia.

The other significant impact is on capacity for miscarriages of justice. Unfortunately, the Victorian criminal justice system does not have a good history when it comes to wrongful convictions through DNA evidence. Commenting on the wrongful conviction of Farah Jama, Justice Frank Vincent’s report noted the difficulties our legal system has had to adapting to the almost “magical” developments of DNA science. He concludes that everyone ignored “Locard’s principle”, which is the scientific principle that every contact leaves a trace. Jama’s wrongful conviction was based solely on a single piece of DNA evidence that had been transferred through entirely innocent means. A piece of DNA can transfer onto a person merely by sitting in the same car, at different times. There was no evidence that Jama was ever at the club, and perhaps more perturbing is the fact that there was no evidence that a rape had even been committed at all. The conviction was based upon blind faith in science. This unblinking trust sent an innocent man to prison and caused a woman to be re-victimised by the criminal justice system due to a crime that didn’t even take place. If we widen the net for DNA evidence to the realm of the family we also increase the possibilities for these types of tragedies to occur.

Despite these concerns, familial matching has an undoubtedly useful investigative function. The power of familial matching to generate new leads in unsolved murders and cold cases cannot be ignored. The notorious US serial killer, the BTK murderer (an acronym for “bind, torture, kill”) was caught using familial matching. But due to its impact on rights, familial matching must be limited by subjecting it to strict judicial oversight. One proposal is that a judge should only allow familial matching to occur only if a serious crime would remain unsolved unless authorities use familial matching.

Unfortunately, we are in a position of limbo on this matter. Our parliaments have not remotely considered the issue, leaving its legal status uncertain. This is despite the Ford Committees recommendation in 2010 that familial matching can “only be adopted after an appropriate exposure to public examination and assessment.” The Committee nevertheless concluded that while the legislature has clearly not examined this issue, there is nothing in the Federal Crimes Act 1914 (Cth) that would prevent familial matching. In Victoria, it may not be legal under the Victorian Charter of Human Rights unless explicitly enacted by parliament.

This crucial question has remained unexamined for far too long. It is time for the public to consider and debate this issue. Modern politics usually doesn’t have the capacity for foresight and often these things are upon us before we have a chance to scrutinise them. This must change due to the dizzying speed in which science can change, morph and undermine the ideals that define and protect us.

Felix Ralph

My thanks go to Ali for letting me occupy his online couch for a bit as a guest blogger. Feel free to comment below or contact me on the tweets  @fchralph.

[1] Ezekiel 18:20.
[2] For those who care about this issue and are interested to delve into the science behind it, I recommend Gregor Urbas & Marc Smith. ‘Regulating New Forms of Forensic DNA profiling under Australian legislation: Familial Matching and DNA Phenotyping’ (2012) 44 Australia Journal of Forensic Sciences 66.
[3] The VPFSD has recently upgraded their testing capabilities from 9 loci to 23 loci.
[4] See Mary McCarthy, ‘Am I My Brothers Keeper?” Familial DNA Searches in the 21st Century’, (2011) 86 Notre Dame Law Review 393.