The rape and beating of a young female jogger in Central Park in April 1989 garnered national attention not only because of the randomness and sheer brutality of the act itself, but because it quickly came to symbolize city dwellers’ fears of crime and the perceived ineffectiveness of New York City law enforcement in preventing it. Reacting swiftly to public opinion, police rounded up a crop of suspects—young men, all minorities from Harlem, who had gone on a “wilding” spree in the park that evening, beating and robbing many in their path. Five of them confessed to the crime; four were convicted and sentenced to 5-10 years in prison, with the fifth serving 5-15 years. But recent revelations have thrown those convictions into doubt, and in the process revived debate over false confessions, law enforcement tactics, and the volatile politics of race and criminal justice in New York City. The use of DNA evidence in criminal prosecutions has taken a central place in this debate. In 1989, DNA evidence was still relatively new. Today it is widely used. The fact that we can say with certainty that none of the five men convicted in the Central Park case raped the jogger is due to DNA testing. Matias Reyes, a convict serving time for another rape and murder, confessed to the rape in Central Park; testing revealed that his DNA—not that of the convicted five—matched that of the semen found on the victim.
Not surprisingly, critics are calling for a thorough investigation of the city’s District Attorney’s office and urging the court to vacate the rape convictions of the five men convicted for the attack. At the forefront of critics has been the National Organization for Women, which has called on the U.S. Department of Justice to launch an independent investigation of the case. “As feminists we have a stake in making sure that real truth-seeking investigations and prosecutions of crimes against women occur—not ones that are hasty, incomplete, media driven, and play on racist stereotypes,” the New York chapter of NOW said in a statement in October.
In 1989, NOW made the jogger into a symbol of violence against women. Feminists were some of the loudest voices in the swelling chorus of public opinion calling on New York’s law enforcement community to find the culprits as swiftly as possible—and were credulous when the confessions came in. Some observers have interpreted feminists’ current interest in the issue as a belated mea culpa for their earlier eagerness to see someone—anyone—put behind bars for such a highly publicized sexual assault. Looking back on NOW’s actions, Lee Che Leong, a self-identified feminist, wrote recently in Newsday, “in their rush to judgment in the Central Park case, feminists became complicit in a system that allowed the guilty man to roam free and brutalize four other women, one of whom was killed.”
Leong’s criticism was meant to highlight NOW’s lack of attention to issues of race; unremarked, but of greater concern, is that NOW is also using the Central Park jogger case to push a proposal that poses a broader and more serious threat to civil liberties—feminists are urging lawmakers to expand DNA databases. “The Central Park jogger case shows that legislation is needed to build a comprehensive DNA database to catch criminals,” Alex Leader, the executive director of the New York City chapter of NOW told a reporter earlier this month. “We’ve learned a lesson from this case.” Other NOW leaders have encouraged the expansion of such databases. Last spring, endorsing a Congressional bill that would appropriate $250 million to spend on DNA analysis of rape kits, NOW President Kim Gandy said, “It is critical that DNA forensic evidence be collected and processed, and then linked with other state, local and national crime databases.” Similarly, an article in NOW’s February on-line newsletter praised a Texas law that would allow law enforcement to collect DNA samples from those accused of sex offenses at indictment –not conviction.
In their call for the creation of DNA databases, NOW is arriving a bit late to the party. All fifty states already have criminal DNA databases, and the FBI runs a national database (CODIS) that links them and includes federal criminals as well. DNA evidence is a powerful tool for crime fighting and, when used properly, DNA databases can assist in investigations. It is useful and necessary for states and the federal government to construct DNA databases of violent convicts for the purposes of solving crimes. The trend, however, is to expand these databases to include an increasingly broad swath of the population—not merely violent offenders, but all felons; not merely adults, but juveniles; and not merely those convicted of felonies, but anyone arrested for one. Beginning in January, for example, the state of Virginia will take DNA samples from anyone arrested for a felony. Nationwide, DNA databases suffer from a serious case of mission creep.
Such expansions pose threats to civil liberties. DNA banking of convicted violent offenders is a good thing, but compulsory DNA sampling of the accused changes the nature of the relationship between citizens and the state. No longer are we innocent until proven guilty. Worse, the expansion of DNA databases creates new opportunities for genetic criminal profiling in the future—and the likelihood of DNA-style defenses. A recent report by the British Nuffeld Council on Bioethics suggested that, as our knowledge of behavioral genetics grows and scientists identify genetic traits that encourage antisocial behavior, courts might consider as a mitigating factor in sentencing a criminal’s genes, just as they now weigh environmental influences such as a history of poverty or child abuse.
These databases also pose serious challenges to privacy. Genetic information is extremely personal and revelatory. Although most states have passed some regulations controlling access to the information stored in their databases, the regulations are inconsistent. Few states have implemented effective quality control and privacy protections for the original DNA samples (the blood samples and cheek swabs) they store, nor have they passed strong penalties for misuse of the information in the databases. As well, the claim that law enforcement uses only “junk DNA” for identification purposes—and thus cannot find out information about an individual’s genetic conditions—is not the whole truth. A few years ago, a team of British scientists found that markers of a person’s susceptibility for type 1 diabetes could be located on the standard DNA fingerprint of “junk DNA” used by law enforcement officials for identification. It is not impossible to imagine that one day we will be able to locate more hereditary conditions on “junk DNA”—information that could be used for discriminatory purposes.
Finally, there are questions about the effectiveness of these DNA databases. Despite the frequent stories one reads of how a “cold hit” on a DNA databases led to the solving of a decades-old crime, in fact, as USA Today recently reported, no one is actually tracking how many of these cold hits lead to convictions. Given the dangers these databases pose to privacy, at the very least we should make an honest accounting of their usefulness before expanding their reach to broader segments of the population.
Feminists are not the only group to embrace uncritically the expanded use DNA databases, of course, and their enthusiasm is consistent with their tendency to enlist the power of the state on behalf of their ideological goals. But DNA is peculiarly powerful. Feminists frequently complain about discrimination: in the workplace, in the locker rooms – even, ridiculously, on the nation’s golf courses. But their notions of what constitutes discrimination are picayune compared to the possible abuses of genetic information. What NOW—and the public—should be demanding is not the rapid expansion of DNA databases, but a careful assessment of their usefulness and risks. Bringing criminals to justice is a goal we should all embrace; the cavalier expansion of as powerful a tool as DNA databases is not.
