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The issues involved in the DNA 'revolution' are nothing new

By Kirsten Edwards - posted Thursday, 15 February 2001

I have been reading about the recent DNA exonerations of more than 100 innocent people in the US for a while now but I will never forget the day when I realized the kind of revolution that DNA evidence was causing in the court system. It was the day I read about Boris Becker.

Have you heard about Boris Becker? For years he and his wife, actress Barbara Feltess, were considered a model couple for the new Germany – gorgeous, athletic, wealthy and of mixed race, they seemed devoted to each other and their two children. Then came the divorce and the custody dispute. One of the allegations made against Boris seemed to be predictable given his former nickname of "Bonking Boris" – he had an affair. Apparently the affair had produced a child but Becker is vehemently denying paternity. Instead Boris is asserting – apparently with a straight face – that what really happened was that the relevant child’s mother gave him a blow job in the broom closet of a fashionable London restaurant THEN retained the ahem "results" in her mouth for the purpose of artificial insemination, presumably after he departed from the broom closet. Yeah, right Boris!

What pressed old Boom-Boom (or Bonk-Bonk as he is also known) to present such a preposterous story in a court of law? DNA – genetic tests will probably prove he is the father and so the whole "But honey, I’ve never seen that woman before in my life" was just not going to cut it. Similarly you’ll remember it was the threat of DNA testing on "the dress" (and who knows maybe "the cigar") that led to Bill Clinton providing his helpful excursus on the difference between "sexual relations" and an "inappropriate internship relationship".


DNA evidence in the US has led to some equally preposterous but far more concerning stories in US courts. When men wrongly convicted of sexual assaults prove their innocence by using DNA evidence to show that semen (or blood or hair) found at the crime scene is not theirs, prosecutors, police officers and judges all rush to present the theory of a second perpetrator – a shadowy figure, never apprehended or even suspected, who left the evidence in question. The man is alleged to either be a lover of the victim or a co-offender, meaning that the accused man either showed up later or was also there and thus is still guilty. The allegation of such a figure has become so commonplace in appeals claiming DNA-based actual innocence that he has been given a name – "the un-indicted co-ejaculator". It would be funny if it wasn’t so tragic – men serving long prison terms or on death row, convinced that they would be released when DNA confirmed that they had not been at the crime scene languish in jail. Victims who vehemently deny the presence of any such man in their lives – either by assault or consent – are told they are lying or mistaken, some are accused of being adulterers or promiscuous. So much for the "pro-victim stance".

Story 1

Roy Criner, a 20-year-old logger, was convicted of the rape and murder of a 16-year-old hitchhiker. He was sentenced to a prison term of 99 years. The damning evidence against Criner was a boast to 3 of his buddies that he had recently had sex with a drunk 20-year-old hitchhiker. There was no other evidence against him. As an investigator later stated:

"As a defense investigator working a homicide case my primary focus is to go out and find holes in the case. That’s what was most frustrating in this case, because there was no case to punch holes in. There was no physical evidence to try and prove it was not credible. There was no witness testimony to prove it wasn’t credible. The only case they had was this statement Roy made to his friends."

Legally, a person is not supposed to be convicted if the only evidence against them is out of statements made to other people (for reasonably obvious reasons – anyone could put someone in jail by making up a story about their alleged confession to a crime). And the conviction was briefly overturned on appeal but Mr Criner never saw daylight before his conviction was reinstated. The Court of Criminal Appeals of Texas was convinced there was convincing scientific evidence - blood test that matched Criner to evidence found on the victim. Well sure, it actually matched Criner and 50 million other people, and 27 other pieces of forensic evidence were not matched to him, but the conviction stood.

After more than six years in prison, Criner was offered the chance for a DNA test to clear his name. The test was conducted by an independent laboratory, another test was performed by the prosecution’s own lab. Both tests cleared Roy Criner completely. What happened? Absolutely nothing. As far as the State was concerned the test results were very interesting but proved nothing.

You see, in the US proof of innocence is not always grounds for an appeal. If your trial had nothing wrong with it, or any appeal grounds have been exhausted, new evidence might not be sufficient to get a person out of jail. That’s the law – at least thats the law according to the cadre of conservative "strict constructionist" judges on the Supreme Court. George Bush Jr has promised to appoint more of them. Add to this that in Texas to get free after you have been convicted, the current judges say you must prove it is impossible that you did the crime. Impossible. And alibis and DNA tests do not even come close. A Texas Supreme Court judge was asked what evidence could satisfy the test. "I don’t know," she replied.


Story 2

Corporations in the US have been complaining about having to absorb huge payouts for the victims of carpal tunnel syndrome – a form of RSI. The syndrome is devastating to those affected but it is also hard to test for – leaving many to suspect that malingerers are soaking up payouts. Recently it was discovered that there may be a genetic predisposition to the syndrome. Corporations are battling with employee unions for the right to DNA test those claiming the syndrome for the genetic marker. Why are the unions objecting? Well one reason is where do you draw the line. If you test those who have already developed the syndrome, why not save money by testing for the condition when people are applying for jobs and refuse to hire those who might later develop the condition.

But isn’t this also justifiable – why not save corporations money and protect people from developing a devastating condition? It depends on your fear of the famous slippery slope – as more and more is known about genetic predispositions employers and insurance companies will be able to develop sophisticated screening techniques. So many see this as fair – like higher premiums for smokers. But genetic predispositions are just demonstrations of increased likelihood of a future event. Like the fact I am more likely to become pregnant at work and cost my employer money, and like the fact that a homosexual man is more likely to develop HIV. Does refusing to hire me or a gay man therefore have a rational economic and scientific basis?

My point is that there really is no revolution. DNA evidence and genetic testing are like that other crazy new invention, the Internet. The technology is astounding and the potential mind boggling – but the issues confronting both are not new. In the criminal justice system DNA is a powerful tool, coming tantalizing close to offering an answer – the truth – in a clumsy system riddled with prejudice and guesswork. I am as intrigued by anyone by its potential. In San Francisco recently, the US government even announced they are building a national database of genetic information for cats. Cat hair, blood and tissue can help police identify suspects and recently a Canadian man was convicted of the murder of his wife with evidence based on genetic identification from his cat, Snowball.

But let’s not get carried away; proving someone was at a crime scene does not automatically prove they are guilty. Just as proving that markers do not match a suspect does not automatically clear him of any involvement. What is tragic is that so far the limitations of DNA evidence are usually only acknowledged by courts when they appear to clear people of involvement. In every case the benefit of the doubt should go to the accused. This isn’t a new dilemma caused by technology – that’s basic criminal law. Prejudice against a man who has been once accused is about as new as ridiculous stories about sexual indiscretions. It’s the same thing with genetic discrimination – negotiating prejudice and stereotype is an old problem, no matter how easy sophisticated technologies now make it to exploit them.

The solution as I see it is not just that old chestnut – proceed with caution by sounding out relevant ethical principles – but to get our priorities straight and do first things first. Right now – in a country that models itself on the US where people are being proved innocent by DNA testing everyday – shouldn’t we make at least some provision for free genetic testing for inmates with a cognizable claim of innocence? Shouldn’t we make sure the testing labs are beyond police and prosecutorial misconduct or error, in fact beyond reproach in a court of law. Before we start testing an entire town like in Wee Waa, before we test every inmate in prison, before we test the entire population – shouldn’t we devise some method to negotiate the privacy and civil liberties concerns that have been around for ages? This isn’t a technology issue – I sat through the Australia Card debate when I was still in primary school and the Americas’ Cup lived in Perth. The debate is important but we shouldn’t pretend it is anything new and therefore that only the young, scientific and technologically savvy have any right to participate.

So if my friends are right and there is only one good man in the world and he is either gay or married (or both) will cloning help us single gals solve all our boy troubles forever?

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About the Author

Kirsten Edwards is a Fulbright Scholar currently researching and teaching law at an American university. She also works as a volunteer lawyer at a soup kitchen and a domestic violence service and as a law teacher at a juvenile detention centre but all the community service in the world can’t seem to get her a boyfriend.

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