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I AM a former prosecutor in the United States where I was the adviser to two U.S. attorneys general on the use of forensic DNA technology and where I was the executive director of the U.S. Department of Justice’s National Commission on the Future of DNA Evidence. My specialty as a prosecutor was the prosecution of sex crimes committed against children. I left the Department of Justice about 10 years ago and began consulting internationally on the integration of forensic DNA evidence into criminal justice systems. I have been fortunate to help over 35 countries realise the potential of DNA technology to protect victims — mostly women and children — from the horrors of rape. I have spent equal time and energy to protect the innocent — mostly men — from the tragedy of wrongful conviction with the very same technology.
When I first started working abroad, my presentations would often start with a rhetorical question that went something like this: “What is the most important factor influencing the success of forensic DNA databasing? Is it the quality of the laboratory performing the analysis? Is it the training and education of the police ensuring that they collect valuable evidence? Or perhaps the skill with which prosecutors can leverage the probative value of DNA to support their victims’ testimony?” But, of course, it was a loaded question. I had my own answer. “It’s actually none of these,” I would say. “The most important factor influencing the potential effect of DNA in any criminal justice system is what the law allows you to do with it.”
Now I am a little biased here. I am a lawyer by training, by education and probably by nature. But I have a pretty good argument. You can have the best, most advanced laboratory system in the world, the most rigorous quality-assurance procedures, and send specialised crime-scene analysts to every crime scene, but those factors mean little if the law does not allow you to leverage the full potential of the technology and evidence.
Nowhere is that dynamic more tragically clear than in South Africa. I first travelled to South Africa 10 years ago. I left the Department of Justice less than a year earlier and had been invited to participate in a meeting of Interpol’s DNA Expert Monitoring Group in Pretoria. It was my first trip to the continent, so to say that I was excited is an understatement. I did not, in all honesty though, harbour great expectations regarding what I would see from the standpoint of South Africa’s use of DNA technology. But when I saw what the South African Police Force (SAPF) was doing, I was nothing short of astounded. The SAPS had an automated system for DNA analysis that was unique in the world. As Johann van Newkierk toured us through the laboratory I realised that it was, at that time, the most advanced forensic DNA testing robotics system I had seen. I was so impressed that I literally walked out of the lab, got on my phone and called my former colleagues at the Department of Justice trying to convince them to bring Van Newkierk and his colleagues to the U.S. so that they could explain what they were doing. South Africa was going to be a model, not only for Africa, but perhaps for the world. There were crime statistics that proved South Africa to be one of the most sexually violent places on the planet and the country had the capacity and technical sophistication to hit back hard. South Africa was going to prove the power of DNA like nowhere else.
Boy, was I wrong. I have just returned from another trip to South Africa, a trip I have made many times since my first visit. And to be clear, it is not the police that have failed, nor is it the technology, nor is it the laboratory personnel. Rather, 10 years after South Africa created one of the most important laboratory infrastructures in the world, the politicians in the South African Parliament have still failed to give police the legal authority to save literally thousands upon thousands of lives with DNA. Ten years later and South Africa, in contrast with more than 50 countries around the world, still has no legislation allowing for the establishment of a forensic DNA database.
South Africa is a strikingly beautiful country, but it is also a country that, according to the United Nations, ranks second for murder and first for assaults and rapes per capita — 52 people are murdered every day and the number of rapes reported in a year is around 55 000. Now when it comes to fighting back against serial rapists and paedophiles I have examples from every corner of the planet of exactly what works and just how well. There is nothing better at getting rapists off the street, at protecting little girls and, by the way, at protecting those who would be wrongly accused and convicted of those serious crimes than DNA databases.
What exacerbates the tragedy tenfold in South Africa is that, unlike many countries with the wisdom to implement DNA databases fully, the country already has all the other components necessary to leverage the power of DNA technology — the laboratory system, the finances, the education and the commitment by police. There are no other excuses, nowhere else to place responsibility. As someone who works regularly in other people’s countries, I don’t “call out” or criticise foreign officials easily or often. But on a scale unequalled anywhere else on Earth, hundreds of thousands of children’s lives are sacrificed because of the failure to act by politicians in South Africa. The Parliamentary Portfolio Committee responsible for the legislation that would give police the ability to begin taking rapists off the street immediately has avoided acting on the law for years. The legislation sits in committee, while the worst sexual violence statistics in the world continue to pile up. Except they are not really statistics. They are terrified woman and little girls staring into the face of horrific violence and evil while they are likely infected with HIV — three more of them just in the time it took you to read this article.
• Chris Asplen is the executive director of DNA4Africa (www.DNA4Africa.org).
THERE is currently no legislation in South Africa that regulates the use of DNA as a law-enforcement tool. The Criminal Procedure Act, which was promulgated in 1977 long before DNA was first used in a forensic context, is the only statutory provision that deals with the ascertainment of bodily features from an accused. South Africa, therefore, does not have specific legislation that allows for the expansion and regulation of our National Criminal Intelligence DNA Database. Consequently, The Criminal Law (Forensic Procedures) Amendment Bill was drafted and adopted by cabinet in December 2008. An ad hoc parliamentary portfolio committee initially reviewed the bill. This committee was unfortunately disbanded following the general elections held in March 2009. The bill was reintroduced to Parliament for review by the portfolio committee for police in July 2009. Later that year the committee decided to split the bill into two parts, one dealing with fingerprints and the other DNA. The fingerprint section was immediately considered and finalised in March 2010. However, almost two years since they were given the bill for review, this committee has not considered the DNA section.
Reasons provided for this include concerns regarding the practical implementation of the bill, as well as the the invasion of civil liberties.
The committee has decided that it needs to embark on an overseas tour to the United Kingdom and Canada to investigate international best practice. Numerous dates have been proposed for the tour and we believe that this will now take place between June 24 and July 10. It seems that eight portfolio committee members, one person from the Forensic Science Laboratory and a representative from the parliamentary research unit will go on the study tour. The DNA Project firmly believes that the committee needs to consider urgently the amendment and thereby ensure that South Africa uses a DNA database effectively as a criminal intelligence tool. In the absence of such a legislative framework, the very high numbers of perpetrators who are not detected, combined with the high number of cases being withdrawn before reaching court and the resulting very low conviction rates, will continue to undermine all efforts in the fight against crime. Criminals must be held accountable for their actions and South African citizens protected against serious and violent crimes.
• Dr Carolyn Hancock studied at the University of KwaZulu-Natal where she obtained a Ph.D in genetics. After lecturing in the department of genetics at the University of KwaZulu-Natal she joined the DNA Project in 2007 and is now a director of this non-profit organisation, the aim of which is to facilitate the expansion of the South African National Criminal Intelligence DNA Database. The DNA Project (www.dnaproject.co.za) is committed to advancing justice through the expanded use of DNA evidence in conjunction with a national DNA criminal intelligence database.
Why is SA not implementing the necessary legislation? We asked Dr Carolyn Hancock, a Howick-based director of the DNA Project
on a scale unequalled anywhere else on earth, hundreds of thousands of children’s lives are sacrificed because of the failure to act by politicians in South Africa.