New Rape Law Permits Speedy DNA Tests of Accused

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State Rep. Ann Kitchen

AUSTIN, Texas (WOMENSENEWS)–Rosemary Coffman thinks she forgot to lock the window before she went to sleep that night, the second one she spent in her new home. She awoke before dawn to a rapist holding a knife to her throat.

The shock and pain of the assault were followed by frustration.

"All the police had was DNA," Coffman says, referring to the information in cells that provide specific genetic information unique to each person.

"I couldn’t give a description, it was dark. He put a pillow over my face. Though I had a sense of body size, there wasn’t much I could do to help the police. They never found him."

In the 16 years that have passed since the rape, the use of DNA samples taken from crime scenes has grown rapidly throughout the legal system, becoming increasingly viewed as definitive proof of guilt or innocence. It has even been used to free persons on death rows.

Now, a new Texas law–the first of its kind in the United States–will permit prosecutors to collect DNA from an accused sexual offender at indictment in the hope that the test will permit police to quickly determine whether to pursue the case. Police also hope the measure will allow them to tag repeat offenders, leading to possible revocations of their parole or probation.

According to a 1997 Justice Department study, 46 percent of convicted sex offenders are out of jail on probation, 12 percent are on parole and 4 percent are in local jails. With nearly 60 percent of convicted offenders out on the streets, "this law would probably be the biggest and the best law that Texas citizens have seen in a very long time," says Director of Forensic Science at the Austin Police Department Mark Gillespie. "I’m very confident that it will revolutionize our law enforcement by getting predators off the street, those who prey on our women and children."

Coffman, an Austin attorney, testified before Texas legislators on behalf of a bill and was a leading force behind its passage.

"I was coming at this from two perspectives: as a survivor and as a lawyer," Coffman says. "I believe in the law. There are people out there with sick minds, sick hearts. We cannot let them do this to people."

The average sex offender commits between 8 and 12 assaults before being convicted and 48 percent of all reported rapes fail to result in arrests, according to the U.S. Justice Department.

Under the new Texas law, effective Feb. 2, prosecutors may take DNA cheek-swab tests of those indicted for sexual assault, promotion of child pornography and other sexual offenses.

State Rep. Ann Kitchen, a Democrat from Austin, led efforts to pass the bill in the Texas House. A former volunteer counselor for sexual assault victims, Kitchen believes the new law will successfully prevent future sexual assaults by speeding up guilty pleas and convictions.

"It’s another recognition of the priority we need to place on sexual assault and rape," Kitchen says. "It’s an issue that often goes unreported and there’s still a certain amount of shame associated with it that shouldn’t be there. It has a very lasting effect on a woman’s life."

New Law Could Benefit Wrongly Accused As Well As Victims

At the same time, the new law helps investigators eliminate those likely to be innocent well before taking them to trial.

"We’re going to find out earlier that they are the person or that they’re not," says Ruth-Ellen Gura, an assistant district attorney for Travis County, Texas. "We’re not going to go through that long period of time when everyone is going down the wrong road."

Defense attorneys such as Nina Morrison, executive director for the Innocence Project at Benjamin N. Cardozo School of Law in New York, concur, noting that state databases of convicted-offender DNA have been helpful in establishing innocence.

She added that the Innocence Project had no objection to taking such samples for testing and investigating a crime.

"We do take very seriously the issues of human error and deliberate misconduct in the investigatory phase," Morrison says. "We want to make sure the defense has the right to re-test the DNA independently; that’s an important safeguard."

Even the American Civil Liberties Union, which initially was concerned about the law’s privacy implications for government use of DNA and how that information would be maintained, says it is cautiously optimistic about the new law. Texas legislators "made a genuine effort to strike the proper balance and still achieve their goal," says William Harrell, executive director of the ACLU of Texas.

"We will continue to be concerned about taking DNA upon indictment. We always fear the slippery slope," Harrell says. "But they have dealt with that concern by making it so that the record has to be expunged if the indictment turns out to be false, or if the conviction is overturned or the case dismissed."

The Innocence Project’s Morrison said she too approved of the new law’s requirement for the state to wait until conviction before placing the DNA samples into Texas’s convicted-offender database.

Moreover, even if DNA analysis is now accessible in Texas at an earlier stage of prosecution, it should not and will not be the only evidence prosecutors use in building a case, says Keith S. Hampton, who represented the Texas Criminal Defense Lawyers Association during negotiations on the new law. For example, says Hampton, it’s possible to plant DNA at a crime scene to make a person look guilty, so careful investigative work and additional evidence are still needed.

"We know that highly technical evidence can be manipulated just like blood or hair samples or anything else," Hampton says. "You have to follow the evidence, not use it to substantiate some theory that you have. We have to watch for that and we’ll always have to watch for that until humans are perfect."

Suzanne Batchelor has written for MedscapeHealth.com, "Healthline Texas" and the national science series "Earth and Sky."

 

 

 

For more information:

 

Text of the new Texas law, known as SB638:
http://www.capitol.state.tx.us/

National Sexual Violence Resource Center:
http://www.nsvrc.org/

The Innocence Project:
http://www.innocenceproject.org/

 

 

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