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DNA Collection is a Feminist Issue

NOTE:  I originally posted this column in 2012, after the Maryland Court of Appeals reversed a conviction based on the collection of a DNA sample from a suspect.  This case is now being heard before the Supreme Court, so I re-post the column here.


In 2003, a man broke into Vonette W.’s house in the middle of the night, wearing a scarf to cover his face. He held a gun to her head and raped her. After the crime Vonette called the police, and forensic evidence was collected at a nearby hospital. The evidence didn’t match with anything in the Maryland DNA database at that time.

Six years later, Alonzo King was arrested on assault charges. In the course of his arrest, police took a swab of saliva from his cheek, as permitted under Maryland’s 2003 DNA Collection Act, which allows officers to collect samples from people arrested. King’s DNA came up as a match in the Vonette W. rape case. King was convicted, and appealed, on grounds that this was a violation of his Fourth Amendment right to be free from unreasonable searches.

This week, the Maryland court of appeals agreed with King, and reversed the conviction as based on “fruit from a poisonous tree:” The DNA sample from his saliva was an unwarranted violation and intrusion on his privacy. The Supreme Court is now hearing the case, on appeal from Maryland’s attorney general.

Both the dissent and the majority in the Maryland ruling agree on three important things: What happened to King was indeed a “search.” Second, the touchstone for whether it was a legal search under the Fourth Amendment is a standard of “reasonableness.”  Third, the well-established test of “reasonableness” in a Fourth Amendment case is that the court must “balance the privacy interests of the individual searched against the legitimate government interests promoted by the search.”

Of course, reasonableness and balance don’t come in Standard Weights and Measures. Their determination requires human interpretation.

The dissent that supports the DNA Collection Act argues that the majority arrives at its decision against the Act by “overinflating an arrestee’s interest in privacy and underestimating the State’s interest in collecting arrestee DNA.” “The majority’s application of the test could not be more wrong.”

The majority argues that King has a presumption of innocence, and hence a greater privacy interest than a convicted felon. The dissent agrees that King enjoys a presumption of innocence, but that that has nothing to do with his expectation of privacy once he’s arrested. At the moment of arrest, a person is subject to a lot of permissible intrusions on his privacy, including strip searches.

The ninth circuit court of appeals upheld a DNA Collection statute in 2012, commenting that swabs for all adults arrested for felonies are “little more than a minor inconvenience…and substantially less intrusive” than other types of approved intrusions visited upon arrestees.  DNA collection has been valuable in solving cold cases of rape and sexual assault. Of 462 database-aided arrests in Maryland, 130 (28%) were for crimes of rape or sex offenses.

A Supreme Court ruling from 1966 even upheld the  drawing of blood from an arrestee—much more invasive—as “commonplace” and a procedure “involving “virtually no risk, trauma or pain.”

His risk, trauma and pain, or “intrusion upon privacy and bodily integrity,” of course, is nothing compared to rape.

And that comparison is relevant:  The “intrusions” that the court must balance on the scale to determine “reasonableness” in this case couldn’t be more lopsided.

On the one hand, you have a two-second swab of saliva in a cheek in a police station. On the other hand, you have a man wearing a mask, breaking in to a 53-year-old woman’s own home in the dead of night, and raping her.

It seems that the gross intrusion of the crime would significantly weight the scale of reasonableness toward the “legitimate interests” of the State to collect DNA to solve cold cases of rape and prevent future assaults, and away from the suspect’s right not to have his “bodily integrity” violated by a non-invasive procedure performed in a context of already-diminished privacy expectations.  

But one reason the majority comes to a different interpretation of “reasonableness” is because they envision DNA collection as a more sinister and omnipotent technology than a mere procedure for identification.

A DNA sample contains “much more than a person’s identity,” they argue. Although the Maryland Act only authorizes DNA for identification purposes, the majority writes that it can’t “turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State.”

 A vast genetic treasure map. That sounds scary to anyone who’s seen Gattaca. I’m picturing my DNA displayed on one of those faux-aged treasure maps, with clues written conveniently in English, little Post-its to direct us, and big stars to indicate, “This is the Spot!”

But does the techno-paranoia and Big Brother dystopia that murmurs under the majority’s ruling square with reality?

Not really. The Maryland act categorically prohibits the “plundering” of this treasure map, without exception, and would punish severely any disclosure from a DNA profile.

Sure, the law can get broken. Any legally permissible act or tool of law enforcement might be illegally used. If police officers carry clubs and tear gas, they can use them to beat Rodney King or to assault Occupy Wall Street protestors on a campus.

The fact that they used a law enforcement tool illegally doesn’t lead to the conclusion that the tool, ipso facto, can’t be used legally.

More significantly, the procedure in question can’t actually disclose intimate information that a genetic pirate would want to plunder.

The 13 loci used in this DNA testing are non-coding but “hypervariable.” They don’t reveal any information about human attributes such as height or disease susceptibility, but they vary so much that they work well for identification.

So, on one side of the scale in the balance assessment sits an extremely minor “invasion” of the body, and a hypothetical concern that DNA could be abused. On the other side sits an extremely major bodily invasion—rape—and a profoundly factual injury to a woman’s body, integrity, and privacy.

Yet the Maryland appeals decision gives more weight to the defendant’s rights. Theoretical harms against the suspect and minor invasions of his body are vividly, hyper-sensitively imagined, while intrusions upon the body and integrity of the rape victim, who is at the silent heart of the case, are imagined not at all, or handled with deficient, hypo-sensitivity.

Live today! Unfiltered lessons of a female entrepreneur

Join Pulitzer Prize-winning reporter and best-selling author Charles Duhigg as he interviews Victoria Montgomery Brown, co-founder and CEO of Big Think, live at 1pm EDT today.

Two MIT students just solved Richard Feynman’s famed physics puzzle

Richard Feynman once asked a silly question. Two MIT students just answered it.

Surprising Science

Here's a fun experiment to try. Go to your pantry and see if you have a box of spaghetti. If you do, take out a noodle. Grab both ends of it and bend it until it breaks in half. How many pieces did it break into? If you got two large pieces and at least one small piece you're not alone.

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Two-thirds of parents say technology makes parenting harder

Parental anxieties stem from the complex relationship between technology, child development, and the internet's trove of unseemly content.

Sex & Relationships
  • Today's parents believe parenting is harder now than 20 years ago.
  • A Pew Research Center survey found this belief stems from the new challenges and worries brought by technology.
  • With some schools going remote next year, many parents will need to adjust expectations and re-learn that measured screen usage won't harm their children.

Parents and guardians have always endured a tough road. They are the providers of an entire human being's subsistence. They keep that person feed, clothed, and bathe; They help them learn and invest in their enrichment and experiences; They also help them navigate social life in their early years, and they do all this with limited time and resources, while simultaneously balancing their own lives and careers.

Add to that a barrage of advice and reminders that they can always spend more money, dedicate more time, or flat-out do better, and it's no wonder that psychologists worry about parental burnout.

But is parenting harder today than it was, say, 20 years ago? The Pew Research Center asked more than 3,600 parents this question, and a majority (66 percent) believe the answer is yes. While some classic complaints made the list—a lack of discipline, a disrespectful generation, and the changing moral landscape—the most common reason cited was the impact of digital technology and social media.

A mixed response to technology

children using desktop computer

Parents worry that their children spend too much time in front of screens while also recognizing technologies educational benefits.

(Photo: Chris Hondros/Getty Images)

This parental concern stems not only from the ubiquity of screens in children's lives, but the well-publicized relationship between screen time and child development. Headlines abound citing the pernicious effects screen time has on cognitive and language development. Professional organizations, such as the American Academy of Child and Adolescent Psychiatry, issue warnings that too much screen time can lead to sleep problems, lower grades, weight problems, mood problems, poor self-image, and the fear of missing out—to name a few!

According to Pew's research, parents—which Pew defines as an adult or guardian with at least one child under their care, though they may also have adult children—have taken these warnings to heart. While 84 percent of those surveyed are confident they know how much screen time is appropriate, 71 percent worry their child spends too much time in front of screens.

To counter this worry, most parents take the measured approach of setting limits on the length of time children can access screens. Others limit which technologies children have access to. A majority of parents (71 percent) view smartphones as potentially harmful to children. They believe the devices impair learning effective social skills, developing healthy friendships, or being creative. As a result, about the same percentage of parents believe children should be at least 12 years old before owning a smartphone or using social media.

But a deeper concern than screen time seems to be what content those screens can access. An overwhelming 98 percent of those surveyed say parents and guardians shouldered the responsibility of protecting children from inappropriate online content. Far less put the responsibility on tech companies (78 percent) or the government (65 percent).

Parents of young children say they check the websites and apps their children use and set parental controls to restrict access. A minority of parents admit to looking at call and text records, tracking their child's location with GPS, or following their child on social media.

Yet, parents also recognize the value of digital technology or, at least, have acquiesced to its omnipresence. The poster child for this dichotomy is YouTube, with its one billion hours played daily, many before children's eyes. Seventy-three percent of parents with young children are concerned that their child will encounter inappropriate content on the platform, and 46 percent say they already have. Yet, 80 percent still let their children watch videos, many letting them do so daily. Some reasons cited are that they can learn new things or be exposed to different cultures. The number one cited reason, however, is to keep children entertained.

For the Pew Research Center's complete report, check out "Parenting Children in the Age of Screens."

Screens, parents, and pandemics

Perhaps most troubling, Pew's survey was conducted in early March. That's before novel coronavirus spread wildly across the United States. Before shelter-in-place laws. Before schools shuttered their doors. Before desperate parents, who suddenly found themselves their child's only social and educational outlet, needed a digital lifeline to help them cope.

The COVID-19 pandemic has led many parents to rely on e-learning platforms and YouTube to supplement their children's education—or just let the kids enjoy their umpteenth viewing of "Moana" so they can eke out a bit more work. With that increase in screen time comes a corresponding increase in guilt, anxiety, and frustration.

But are these concerns overblown?

As Jenny Radesky, M.D., a pediatrician and expert on children and the media at the University of Michigan's C.S. Mott Children's Hospital, told the New York Times, parents don't always need to view screen time as a negative. "Even the phrase 'screen time' itself is problematic. It reduces the debate to a black and white issue, when the reality is much more nuanced," Radesky said.

Radesky helped the American Academy of Pediatrics craft its statement about screen time use during the pandemic. While the AAP urges parents to preserve offline experiences and maintain limits, the organization acknowledges that children's media use will, by necessity, increase. To make it a supportive experience, the statement recommends parents make a plan with their children, be selective of the quality of media, and use social media to maintain connections together. It also encourages parents to adjust their expectations and notice their own technology use.

"We are trying to prevent parents from feeling like they are not meeting some sort of standard," Radesky said. "There is no science behind this right now. If you are looking for specific time limits, then I would say: Don't be on it all day."

This is good advice for parents, now and after the pandemic. While studies show that excessive screen time is deleterious, others show no harm from measured, metered use. For every fear that screens make our kids stupid, there's a study showing the kids are all right. If we maintain realistic standards and learn to weigh quality and quantity within those standards, maybe parenting in the digital age won't seem so darn difficult.

How meditation can change your life and mind

Reaching beyond the stereotypes of meditation and embracing the science of mindfulness.

Videos
  • There are a lot of misconceptions when it comes to what mindfulness is and what meditation can do for those who practice it. In this video, professors, neuroscientists, psychologists, composers, authors, and a former Buddhist monk share their experiences, explain the science behind meditation, and discuss the benefits of learning to be in the moment.
  • "Mindfulness allows us to shift our relationship to our experience," explains psychologist Daniel Goleman. The science shows that long-term meditators have higher levels of gamma waves in their brains even when they are not meditating. The effect of this altered response is yet unknown, though it shows that there are lasting cognitive effects.
  • "I think we're looking at meditation as the next big public health revolution," says ABC News anchor Dan Harris. "Meditation is going to join the pantheon of no-brainers like exercise, brushing your teeth and taking the meds that your doctor prescribes to you." Closing out the video is a guided meditation experience led by author Damien Echols that can be practiced anywhere and repeated as many times as you'd like.
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