9 ms·

I guess the legal question is "was her DNA medical records" or "was her DNA evidence". If it was the former, I'd say she has a case because of HIPAA. If the la

I guess the legal question is "was her DNA medical records" or "was her DNA evidence". If it was the former, I'd say she has a case because of HIPAA. If the latter, not so much.

zibby8 4y ago
Even if the DNA was evidence as part of her domestic abuse / rape case, I think there is an argument to be made that using the same evidence for other cases is an unreasonable invasion of privacy (as defined by the 4th amendment). I should be able to have my day in court without giving the government carte blanche to do whatever they want with my personal effects in the future.
- s1artibartfast 4y ago
  It is interesting because this type of protection doesn't really exist in other areas. If you let a cop into your house for domestic abuse and they see an illegal gun, drugs, ect, they can certainly use that evidence against you. And Yes, this IS a barrier to victims who are also criminals seeking help when they need it.
- deleted 4y ago
  [deleted]
- torstenvl 4y ago
  Something you turn over to the government is not private from the government. Expecting otherwise is clearly not "reasonable." A criminal prosecution is not your day in court. A crime victim is not a party to a criminal proceeding. There are maybe a handful of cases where the concept was even contemplated, and it was on a motion to consider a victim's out-of-court admissions as evidence under R. Evid. 801(d)(2). New Mexico v. Vallejos (N.M. App. 2019) ("The State's Motion to Amend, containing Victim's statements, does not fall within the hearsay exemption in Rule 11-801(D)(2) because Victim is not a party opponent."); Ohio v. Ingram (Oh. App. 2016) ("We re-affirm our holding in Browning that an alleged victim who testifies as a witness for the state is not a party-opponent within the meaning of Evid.R. 801(D)(2).")
  - zibby8 4y ago
    I think this is too myopic a view. Whether or not one is a party in a court proceeding doesn't mean you don't have "your day in court," which is just a chance for you to share your account of what happened. That account may be an oral recantation or DNA you provide as part of the investigation. In either case, the important part is that you, by offering evidence and testimony, are doing a service to society by helping remove a rapist from the streets, thus making society safer. Why the government thinks its a good idea to reward this service with later invasions of privacy is beyond me.
    - deleted 4y ago
      [deleted]
anonporridge 4y ago
That seems like the wrong line to draw here. Really, we may want to make sure we have a system where victims of crimes aren't afraid to come forward for help, for fear that coming forward may result in an increased likelihood that they themselves are caught for a crime they previously committed. Even typing it out, it doesn't feel right. We obviously want to catch criminals, even those who are themselves victims of crime. But we also need to be practical and recognize that breaking cycles of victimization wherever you can is a social good, and that anything that makes people too afraid to interact with the law enforcement and justice system is problematic, because it expands the outlaw class. I don't know if that's right, but it is my immediate thought.
- jcrawfordor 4y ago
  Some police departments have a policy of not arresting on some warrants when responding to a domestic violence or sexual assault call, because they don't want to discourage people calling about these kinds of cases just because they have a misdemeanor summons out or whatever. This seems like a very analogous situation: if rape kits can be used as evidence against the reporter, it will discourage anyone with minor criminal activity reporting rapes. This significant curtails a vulnerable population's access to law enforcement assistance and will advance a reputation that e.g. rape of sex workers will not be prosecuted.
- causi 4y ago
  Really, we may want to make sure we have a system where victims of crimes aren't afraid to come forward for help, for fear that coming forward may result in an increased likelihood that they themselves are caught for a crime they previously committed. People tried protesting this decades ago when the government started collecting fingerprints for everything. Get a federal job, give your fingerprints. Get a nursing license, give fingerprints. Get a carry permit, give your fingerprints. It didn't work then and I'm not sure it'll work now.
  - anonporridge 4y ago
    The dehumanization will continue until GDP improves.
smadge 4y ago
The article doesn’t say anything about the legal team claiming the DNA is protected by HIPAA. The DNA is evidence. The distinction is that it is evidence for a crime in which the woman is a victim, not evidence fro a crime in which she is the perpetrator. One of the issues at stake is that mixing up the two will disincentivize rape victims from reporting the crime committed against them (because the evidence collected to investigate the rape could later be used against them)
- googlryas 4y ago
  There's also two sets of DNA. I imagine her DNA is not evidence of any crime, only the rapist's. So her DNA is collected coincidentally. Is there any other standard for coincidentally collected evidence? Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house?
  - bombcar 4y ago
    Yes, and that's one of the things the fifth can be used for. If you're in this situation, get a good lawyer to negotiate on your behalf.
  - torstenvl 4y ago
    > I imagine her DNA is not evidence of any crime, only the rapist's. The entirety of the forensic process is evidence. It's scary that there are people who might think differently. It's a fundamental cornerstone of our Constitutional process. > Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house? Yes. A person accusing another person of a crime does not get to pick and choose what evidence to turn over. If you were accused of raping someone, and there were such a diary, would you not want your defense counsel to be able to review the fifteen diary entries previous to that, planning out how to frame you for such a crime?
    - 4y ago
kube-system 4y ago
That's not how HIPAA works. HIPAA only applies to "covered entities". Covered entities are: healthcare providers, healthcare plans, or healthcare clearinghouses. HIPAA rules do not apply to anyone who is not one of these.
- dhimes 4y ago
  Isn't the blood drawn by a healthcare provider?
  - ajhurliman 4y ago
    That's a good question: was the phlebotomist contracted or a full-time employee of SFPD? I feel like that could be a major part of the case.
    - kube-system 4y ago
      It doesn't matter. Nobody is going to have a rape kit done and then not sign a consent form to give it to the police. Giving it to the police is the entire point.
  - kube-system 4y ago
    Maybe, but regardless, once you've shared that data with the police, they aren't bound by HIPAA.
    - dhimes 4y ago
      But they shouldn't have been able to get it.
      - kube-system 4y ago
        They didn't just 'get it'. The victim volunteered the data, for the purpose of solving the crime against her. That's what a rape kit is.
    - 4y ago
ethanbond 4y ago
The legal question (for courts) is also: is this just a bad idea to set as precedent? Regardless of whether it was technically medical or evidentiary, it's astoundingly stupid (from both a judicial and ethical standpoint) to provide any disincentive to a woman getting a rape kit ffs. Note also: HIPAA hardly protects anything. Not clear at all that it would apply in this case no matter what. HIPAA is unfortunately mostly a scary word that people use as a rhetorical device to win arguments.
dekhn 4y ago
Police are not subject to HIPAA. The law only applies to Covered Entities (health care providers) and their service providers ("business associates"). If the DNA was collected outside of that framework, or the police had legal access to the data, I'm not sure that law covers this situation. Note: HIPAA was designed to make access to medical data easier, not harder and it's not some magic law that protects people's health records from prying eyes.

I guess the legal question is "was her DNA medical records" or "was her DNA evidence". If it was the former, I'd say she has a case because of HIPAA. If the latter, not so much.

zibby8 4y ago

Even if the DNA was evidence as part of her domestic abuse / rape case, I think there is an argument to be made that using the same evidence for other cases is an unreasonable invasion of privacy (as defined by the 4th amendment). I should be able to have my day in court without giving the government carte blanche to do whatever they want with my personal effects in the future.

s1artibartfast 4y ago
It is interesting because this type of protection doesn't really exist in other areas. If you let a cop into your house for domestic abuse and they see an illegal gun, drugs, ect, they can certainly use that evidence against you. And Yes, this IS a barrier to victims who are also criminals seeking help when they need it.
deleted 4y ago
[deleted]
torstenvl 4y ago
Something you turn over to the government is not private from the government. Expecting otherwise is clearly not "reasonable." A criminal prosecution is not your day in court. A crime victim is not a party to a criminal proceeding. There are maybe a handful of cases where the concept was even contemplated, and it was on a motion to consider a victim's out-of-court admissions as evidence under R. Evid. 801(d)(2). New Mexico v. Vallejos (N.M. App. 2019) ("The State's Motion to Amend, containing Victim's statements, does not fall within the hearsay exemption in Rule 11-801(D)(2) because Victim is not a party opponent."); Ohio v. Ingram (Oh. App. 2016) ("We re-affirm our holding in Browning that an alleged victim who testifies as a witness for the state is not a party-opponent within the meaning of Evid.R. 801(D)(2).")
- zibby8 4y ago
  I think this is too myopic a view. Whether or not one is a party in a court proceeding doesn't mean you don't have "your day in court," which is just a chance for you to share your account of what happened. That account may be an oral recantation or DNA you provide as part of the investigation. In either case, the important part is that you, by offering evidence and testimony, are doing a service to society by helping remove a rapist from the streets, thus making society safer. Why the government thinks its a good idea to reward this service with later invasions of privacy is beyond me.
  - deleted 4y ago
    [deleted]

anonporridge 4y ago

That seems like the wrong line to draw here. Really, we may want to make sure we have a system where victims of crimes aren't afraid to come forward for help, for fear that coming forward may result in an increased likelihood that they themselves are caught for a crime they previously committed. Even typing it out, it doesn't feel right. We obviously want to catch criminals, even those who are themselves victims of crime. But we also need to be practical and recognize that breaking cycles of victimization wherever you can is a social good, and that anything that makes people too afraid to interact with the law enforcement and justice system is problematic, because it expands the outlaw class. I don't know if that's right, but it is my immediate thought.

jcrawfordor 4y ago
Some police departments have a policy of not arresting on some warrants when responding to a domestic violence or sexual assault call, because they don't want to discourage people calling about these kinds of cases just because they have a misdemeanor summons out or whatever. This seems like a very analogous situation: if rape kits can be used as evidence against the reporter, it will discourage anyone with minor criminal activity reporting rapes. This significant curtails a vulnerable population's access to law enforcement assistance and will advance a reputation that e.g. rape of sex workers will not be prosecuted.
causi 4y ago
Really, we may want to make sure we have a system where victims of crimes aren't afraid to come forward for help, for fear that coming forward may result in an increased likelihood that they themselves are caught for a crime they previously committed. People tried protesting this decades ago when the government started collecting fingerprints for everything. Get a federal job, give your fingerprints. Get a nursing license, give fingerprints. Get a carry permit, give your fingerprints. It didn't work then and I'm not sure it'll work now.
- anonporridge 4y ago
  The dehumanization will continue until GDP improves.

smadge 4y ago

The article doesn’t say anything about the legal team claiming the DNA is protected by HIPAA. The DNA is evidence. The distinction is that it is evidence for a crime in which the woman is a victim, not evidence fro a crime in which she is the perpetrator. One of the issues at stake is that mixing up the two will disincentivize rape victims from reporting the crime committed against them (because the evidence collected to investigate the rape could later be used against them)

googlryas 4y ago
There's also two sets of DNA. I imagine her DNA is not evidence of any crime, only the rapist's. So her DNA is collected coincidentally. Is there any other standard for coincidentally collected evidence? Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house?
- bombcar 4y ago
  Yes, and that's one of the things the fifth can be used for. If you're in this situation, get a good lawyer to negotiate on your behalf.
- torstenvl 4y ago
  > I imagine her DNA is not evidence of any crime, only the rapist's. The entirety of the forensic process is evidence. It's scary that there are people who might think differently. It's a fundamental cornerstone of our Constitutional process. > Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house? Yes. A person accusing another person of a crime does not get to pick and choose what evidence to turn over. If you were accused of raping someone, and there were such a diary, would you not want your defense counsel to be able to review the fifteen diary entries previous to that, planning out how to frame you for such a crime?
  - 4y ago

kube-system 4y ago

That's not how HIPAA works. HIPAA only applies to "covered entities". Covered entities are: healthcare providers, healthcare plans, or healthcare clearinghouses. HIPAA rules do not apply to anyone who is not one of these.

dhimes 4y ago
Isn't the blood drawn by a healthcare provider?
- ajhurliman 4y ago
  That's a good question: was the phlebotomist contracted or a full-time employee of SFPD? I feel like that could be a major part of the case.
  - kube-system 4y ago
    It doesn't matter. Nobody is going to have a rape kit done and then not sign a consent form to give it to the police. Giving it to the police is the entire point.
- kube-system 4y ago
  Maybe, but regardless, once you've shared that data with the police, they aren't bound by HIPAA.
  - dhimes 4y ago
    But they shouldn't have been able to get it.
    - kube-system 4y ago
      They didn't just 'get it'. The victim volunteered the data, for the purpose of solving the crime against her. That's what a rape kit is.
  - 4y ago

ethanbond 4y ago

The legal question (for courts) is also: is this just a bad idea to set as precedent? Regardless of whether it was technically medical or evidentiary, it's astoundingly stupid (from both a judicial and ethical standpoint) to provide any disincentive to a woman getting a rape kit ffs. Note also: HIPAA hardly protects anything. Not clear at all that it would apply in this case no matter what. HIPAA is unfortunately mostly a scary word that people use as a rhetorical device to win arguments.

dekhn 4y ago

Police are not subject to HIPAA. The law only applies to Covered Entities (health care providers) and their service providers ("business associates"). If the DNA was collected outside of that framework, or the police had legal access to the data, I'm not sure that law covers this situation. Note: HIPAA was designed to make access to medical data easier, not harder and it's not some magic law that protects people's health records from prying eyes.