ACLU Letter to the Senate Judiciary Committee Regarding The Violence Against Women Act of 2005

The Honorable Arlen Specter
Chair, Senate Judiciary Committee
Washington, D.C. 20510

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
Washington, D.C. 20510

Re: The Violence Against Women Act (VAWA) of 2005 (S. 1197)

Dear Chairman Specter and Ranking Member Leahy,

We support many of the provisions in the Violence Against Women Act (VAWA) of 2005, S. 1197, particularly those measures aimed at broadening services and outreach to victims of domestic violence and sexual assault. VAWA is one of the most effective pieces of legislation enacted to end domestic violence, dating violence, sexual assault, and stalking. It has dramatically improved the law enforcement response to violence against women and has provided critical services necessary to support women and children in their struggle to overcome abusive situations. Because VAWA remains an essential tool for combating domestic violence, it is important for Congress to continue the programs established under the 1994 VAWA and build on the success of the law. The Violence Against Women Act of 2005 improves current law in several important ways. It would broaden services and outreach to victims of domestic violence; enhance victims' privacy protections; expand housing and economic options; provide immigration protections to victims; and improve economic security for victims.

However, we strongly object to the DNA provisions added to S.1197 during the committee mark-up. This amendment raises important questions concerning the constitutionality of compelling thousands of arrestees and detainees to submit samples of biological materials for analysis and inclusion in the Combined DNA Index System (""CODIS""), a nationwide DNA database operated by the Federal Bureau of Investigation (FBI). Given the serious nature of the DNA amendment and the widespread implications we are withdrawing our support for VAWA at this time.

As currently drafted, the DNA amendment would allow for the DNA of federal arrestees as well as of those being detained by any government agency to be included in the federal (CODIS) DNA database. States that collect the DNA of arrestees would be allowed to include those DNA profiles in the federal database. An arrestee's DNA could only be taken out of the CODIS database if the charges were dismissed or the person was acquitted. Thus, if a person is arrested and ultimately not charged with a crime his or her DNA will remain in the federal database. In addition, the DNA amendment would require a person who has not been convicted and is awaiting trial to submit DNA before being released prior to trial.

The DNA Amendment Violates the Fourth Amendment Protection Against Unreasonable Searches and Seizures.

In pertinent part, the Fourth Amendment provides that ""[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .""[1] By requiring the government to obtain a warrant supported by probable cause, the Fourth Amendment increases citizen control over when the government can legitimately intrude into a person's private life. Without any requirement of individualized suspicion, the DNA amendment would compel thousands of people across the country to submit to a medical procedure with the potential to reveal their most intimate genetic secrets. Under the amendment, the presumption of innocence is removed and people will be penalized for either being arrested or detained, even if the detention or arrest is wrongful. Considering the low standard of proof needed to detain or arrest a person, the fact that this legislation would allow a person's DNA to be included in a criminal database based on ""reasonable suspicion"" or ""probable cause"" is extremely troubling. Even more disturbing is that law enforcement has complete discretion to determine whether an arrestee's DNA is included in CODIS without any independent evaluation or assessment by a court.

The DNA Analysis Backlog Elimination Act of 2000 as written has been upheld against constitutional challenge only because individuals from whom samples are collected have been proven guilty of a crime, thus heightening the government's legitimate interest in monitoring them and diminishing their expectation of privacy.[2] Thus, DNA collection upon arrest or detention will be subject to challenge on Fourth Amendment grounds. Further, the sweeping, suspicionless privacy intrusions permitted by the DNA provisions of VAWA violate the Fourth Amendment because they are conducted entirely for the purpose of solving general, unknown crimes.

The DNA Provisions Would Harm Domestic Violence Victims.

The inclusion of the DNA provisions of S.1197 would severely undermine continuing efforts to end the victimization of domestic violence survivors, by allowing the DNA of arrestees included in state DNA databases to be incorporated in the CODIS. Unfortunately, many victims of domestic violence are subject to arrest or dual arrest based on the false accusations of their abusers. Incorporating the DNA of victims of domestic violence in the CODIS will result in many women being criminalized for merely defending themselves against their abusers. If a victim is arrested and never ultimately charged with a crime, under the DNA amendment, her DNA would be collected and entered into the federal database, with no process for automatic expungement. Putting the burden of expungement on the victim subjects her to further trauma.

The DNA Amendment Creates an Unacceptable Risk of Abuse.

a. Selective Targeting - Racial Discrimination in Law Enforcement

Expanding DNA databases to include profiles from arrestees will produce an identification system that reflects and possibly exacerbates racially disparate arrest rates, in part because the inclusion of arrestees provides an incentive for pretext and race-based arrests for the purpose of DNA sampling.

DNA dragnets in which large numbers of individuals in a geographic area are asked to provide samples, sometimes based on racial descriptions, demonstrate that this law enforcement technique subjects innocent persons to intimidation and harassment by law enforcement officials. The expansion of these databases is subject to abuse by overzealous officials. In 1998, the local police department in Ann Arbor, Michigan ""investigated"" a sexual assault case by ""requesting"" that all African American men in a particular neighborhood ""volunteer"" DNA samples for the state's DNA database. Those who declined were told their refusal would be considered grounds for suspicion in the case and, in fact were often the targets of search warrants.[3] More disturbing, black men who did not appear to be linked in any way to the rape through any evidence, were asked to provide blood samples for DNA analysis. These kinds of discriminatory procedures further erode public confidence in the criminal justice system and further fuel beliefs that minority communities are selectively targeted by law enforcement. The DNA provisions in VAWA will further hamper law enforcement efforts to obtain cooperation from communities in criminal investigations because DNA profiles that are voluntarily submitted will be placed in CODIS.

b. Disclosure of Sensitive Information - Privacy Protections

DNA profiles reveal extremely sensitive, private information regarding physical and mental traits and the likelihood of the occurrence of genetic conditions and diseases, and, as Justice Brennan wrote in his concurrence in Whalen v. Roe, ""The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information.""

The Federal government and now all 50 states including the District of Columbia have laws requiring the collection of DNA samples for criminal investigation purposes. Virtually every state collects and retains the personal medical information of thousands of its citizens, potentially retaining access to those citizens' biological secrets indefinitely. While laws in many jurisdictions prohibit intentional misuse of such information, there are examples of abuse and unauthorized use, which clearly illustrate the security vulnerabilities of DNA databases. Recently, the governor of Georgia was alarmed to discover that information accumulated by the state regarding the private lives of ordinary, law-abiding citizens - including marriage and divorce records as well as fingerprints - had been shared with ""Matrix,"" a privately-owned multi-state law enforcement databank.[4] The larger the system becomes, the more difficult it becomes to ensure the security of DNA databases.

The Expansion of the DNA Database Would Increase Backlogs.

DNA databases are rapidly expanding. As originally conceived, DNA databases were restricted - requiring samples only from adults convicted of felony sex offenses and a handful of other violent crimes. DNA databases have moved beyond violent crimes to include many other offenses as well as other classes of offenders. Various state laws now require the collection of DNA samples from people convicted of such non-violent crimes as felonious possession of food stamps, Ala. Code §§ 36-18-24, 13A-9-91 (2003), and false swearing, Ga. Code Ann. § 16-10-71, 24-4-60 (2000). The amendment adopted as part of VAWA further broadens the scope of DNA databases, overburdening an already overwhelmed system.

As recently as 2004, Congress recognized that states are experiencing backlogs in processing DNA profiles and passed the Justice for All Act, which authorized funding to assist states to eliminate DNA backlogs. If the purpose of the provision in VAWA is to collect DNA in order to catch perpetrators of violent crimes, collecting information on a broad range of arrestees beyond violent crimes is highly problematic because of inefficiency and backlogs that exist in many states In essence, the system will be overwhelmed and will be unable to focus on entering the DNA of people actually convicted of violent crime. The U.S. National Commission on the Future of DNA Evidence, in 2002, recommended against including samples from arrestees on the grounds that there were already hundreds of thousands of samples waiting to be analyzed and state crime laboratories do not have the capacity to process more samples. Currently, there are too many samples and not enough time and financial resources to process them.

The DNA amendment taints the intent of VAWA, which is to offer support and life-saving programs to domestic violence and sexual assault victims. It expands a system that further victimizes the very people VAWA was created to help. Notwithstanding, these provisions violate the Fourth amendment by compelling individuals to provide sensitive genetic information when there may be no evidence of wrongdoing. We strongly urge you to remove the DNA amendment from the Violence Against Women Act of 2005.

Sincerely,

Caroline Fredrickson
Director

LaShawn Warren
Legislative Counsel

Jesselyn McCurdy
Legislative Counsel

Cc: Members of the Senate

Footnotes

[1] U.S. Const. amend. IV (emphasis added).
[2] See, e.g., United States v. Kincade, 379 F.3d 813, 833-36 (9th Cir. 2004) (en banc).
[3] Richard Willing, Privacy Issue Is the Catch for Police DNA ""Dragnets,"" USA Today, Sept.16, 1998. [
4] Dick Pettys, Georgia Stayed With Database Despite Governor's Statement, Associated Press, January 30, 2004, available at 1/30/04 APWIRES 20:43:04.