On September 21, 2003, an unidentified Man broke into the home of a 53-year-old Woman in Salisbury, Maryland. The Man, wearing a scarf over his face and a hat pulled over his head, entered her bedroom and ordered her not to look at him. He reinforced his order with the gun he carried. The Man disguised his appearance so that this Woman could not identify him. While holding the gun to her head, the Man raped the Woman.
The Man, who so very much did not want to be identified, who so very much wanted to “get away with” raping this Woman, left his sperm inside of her.
On September 21, 2003, this Man, who we now know is Alonso King, subjected a Woman to a gross, vile, painful, disgusting intrusion. A strange Man, unknown to the Woman, broke into her home and, against her will and wishes, forcibly, roughly, and repeatedly inserted his penis into her vagina while he held a gun to her head.
This is what rape is. And we can do nothing to make that rape unhappen to this Woman. She will live with what Alonso King did to her for the rest of her life, as do all Women who have been raped by Men.
Even after a Man rapes a Woman, rape continues to intrude into the life of a Woman. It creeps into our conversations with others, it acts as a silent partner guiding our decisions as we navigate our days. It makes you question your identity, your existence, your reality. A Woman one time described living with rape as walking with a limp. That’s apt, I’d say.
Rape is an intrusion, at the very least, and it is so much more than that.
Contrast this, if you will, with the buccal swab.
A buccal swab DNA collection consists of the collector, dressed professionally, wearing a lab coat, hands encased in nitrile gloves, swabbing up-and-down and rotating a sterile cotton swab on the interior of the cheek in a person’s mouth, with enough pressure to remove cells. This process, conducted under sanitary conditions, is repeated on the other cheek with a separate cotton swab. The collector most certainly will ask you, politely, to open your mouth so that he may gently gather those cells.
Does that sound like a rape?
Does that sound like an intrusion?
King thought so. When he was arrested for an unrelated assault, law enforcement, consistent with Maryland law, obtained a DNA sample from the inside of his cheek so as to ensure they knew who they were dealing with. That is, they took a DNA swab to identify him, as DNA provides conclusive proof of a person’s identity. In support of the DNA collection mechanism, the State of Maryland put forth that it has an overriding governmental interest in identifying arrestees accurately. Maryland further asserted that arrestees have no expectation of privacy in their identity.
This is most certainly true. You might not like it that people can see you and know who you are, but that sense of unease with a governmental action does not create a right to cloak yourself in magical invisibility to government identification, particularly when you are arrested.
Notwithstanding the State interest in accurate identification of people in law enforcement custody, the Maryland Court of Appeals sided with King, holding that:
The State’s purported interests are made less reasonable by the fact that DNA collection can wait until a person has been convicted, thus avoiding all of the threats to privacy …. DNA profiles do not change over time (as far as science “knows” at present), so there is no reasonable argument that unsolved past or future crimes will go unresolved necessarily. We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using “traditional” methods.
Not unexpectedly, liberal champions of “privacy” sided with King. The American Civil Liberties Union argued in a friend-of-the-court brief that the use of DNA for identification purposes “has marginal benefits for law enforcement and is based on a theory that has no obvious limiting principle, thus raising significant privacy concerns.”
The ACLU sees “marginal benefits” in the State identifying rapists and, instead, hand-waves away the benefit such identification brings to thousands of Women. The ACLU decides that the State intruded upon a rapist’s privacy, thus, the State is wrong, without a Woman’s view of this ever being taken into account.
Fortunately, the U.S. Supreme Court agreed with Maryland, finding that “(b)y comparison to (Maryland’s) substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search invades an individual’s legitimate expectations of privacy.” (emphasis mine).
Governmental interest in identifying criminals vs. a criminal’s right to have his sperm not identified? It seems fairly obvious to side with Women on this (except it never is).
Despite the liberal caterwauling at the decision, it’s not all bad for Men. Sometimes they are innocent, and DNA exonerates them.
But how did we get here, to this obsession with “Privacy”? Let’s explore, for a moment, the court’s prior decisions discussing “privacy.”
First, the U.S. Constitution does not contain the word “privacy.” It simply doesn’t exist. The court has struggled with the language it would use to describe scenarios where it felt the government over reached. A few early cases struck down laws that challenged the ability of a parent to decide in what subjects and where their children should be educated, but did not use the word “privacy.” Subsequently, the court decided the modern “Penumbra”* Privacy cases, including:
- Griswold v. Connecticut (1965): the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples.
- Stanley v. Georgia (1969): the Court found that a Man has a right of privacy to possess and view pornography (including pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his home.
- Roe v. Wade (1972): the Court found declared personal privacy as fundamental right, and concluded that the right “is broad enough to encompass a Woman’s decision whether or not to terminate her pregnancy.”
- Cruzan v. Missouri Department of Health (1990): the Court found that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments.
- Lawrence v. Texas (2002): the Court found that Texas violated the liberty clause of two gay Men when it enforced a state law prohibiting homosexual sodomy against them.
Some of these activities are not like the others, obviously. And some of these “rights” are more settled than others. And none of these activities are akin to a Man depositing his sperm into a Woman’s vagina during a rape.
King asserted – and the Maryland high court agreed, and many liberal advocacy groups agreed – that he has a right to privacy in the deposit he left inside of the Woman as a result of his criminal rape of her. He argued that the State had no right to take his DNA to identify him (or his sperm).
The ACLU condemned the U.S. Supreme Court’s decision thusly:
(The) decision creates a gaping new exception to the Fourth Amendment. As Justice (Antonin) Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. (This) decision eliminates that crucial safeguard. At the same time, it’s important to recognize that other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by (the) ruling.
Please excuse me for being a “bad liberal,” but why are we concerned that DNA might catch rapists and put them away?
Why is that a bad result?
Why is the intrusion suffered by Women never considered in these analyses?
Why is a “privacy violation” only an issue when the Government allegedly does it?
Why do courts and legislators never seem to consider the blatant privacy violation, the intrusion, inflicted upon Women by Men every time they rape us?
And why does it seem that when a court is discussing “privacy,” it’s often actually discussing Men’s privacy to engage in unspeakable acts of violence against Women?
Men rape more than 600 Women each day in the United States alone; no doubt, that number is low.
600 a day.
That’s 219,000 a year. That’s a city roughly the size of Rochester, New York.
So imagine Men have raped everyone in Rochester, New York. Everyone in Rochester, New York now suffers the intrusion the Woman King raped suffered, complete with the long-term after effects of sexual assault.
We are a nation of wounded Women whose privacy and solitude have been intruded upon in the grossest of ways, and liberal advocacy groups can do nothing except claim that the State has no basis for using DNA to identify violent offenders? That rapists have a “right to privacy” in their sperm deposits?
Why does it have to “be this way”? Why do liberal advocacy groups continue to frame constitutional rights to the detriment of Women?
Imagine, if you would, that every person born in the Unites State has to provide a DNA sample at birth to be stored in a secure DNA database. Imagine, then, that the State uses that DNA database to cross-reference bodily fluids left by criminals at all crime scenes. Imagine, further, that government actually prosecuted every rape, every sexual assault, every other intrusion committed against Women.
We might have something like Women-only space, perhaps even the size of Rochester, New York.
Can someone tell me why that is a bad result?
*This is a reference to what might be the most incomprehensible sentence in a U.S. Supreme Court decision: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”