The impact of forensic DNA profiling on gender privacy
Date
2022-12
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Stellenbosch : Stellenbosch University
Abstract
ENGLISH ABSTRACT: Forensic DNA profiling used in conjunction with a DNA database is considered a powerful
tool in the fight against crime borne out of its ability to link serial offenders, identify
who was present on a crime scene, exonerate the innocent as well as match human
remains to missing persons. Identification is achieved by the statistical matching of an
“unknown” forensic DNA profile to that of a known reference sample, and not on any
physical information that can potentially be derived from the DNA. It is questionable
then, why the legal definition of a forensic DNA profile states that no physical, medical,
or behavioural information may be derived therefrom other than the sex of that person.
This study therefore investigates whether biological sex should be considered private
information and if the disclosure of the sex in a forensic DNA profile infringes on gender
privacy. This was done by examining the purpose of a biological sex marker in
forensic casework, interrogating the development and contents of the Criminal Law
(Forensic Procedures) Amendment Act 37 of 2013 (the “DNA Act”), exploring the concept
of gender privacy and how it relates to the DNA Act, the Constitution of the Republic
of South Africa, 1996 (the “Constitution”) and human rights (and the balance
thereof in criminal cases), as well as comparing these factors to international human
rights instruments and legal systems in other countries. A key finding of this study is
that the concept of gender privacy has not been formally defined in national or international
law, thus a definition thereof is proposed. It further emerged that there is limited
legal and scientific regard for the differences between gender identity and biological
sex, as these terms are often used interchangeably. This research accordingly
highlights the critical need to use these terms accurately in the forensic setting. This
study shows that the knowledge of an individual’s biological sex is not always necessary
in forensic criminal cases and argues that disclosing the sex in forensic DNA
profiling reports may infringe on that individual's right to gender privacy. It suggests
that the protection of a person's gender privacy could be achieved without recourse to
the disclosure of the sex of a person in forensic DNA reports, unless in specific (limited)
instances when it is necessary for the promotion of justice. This novel revelation
has a global impact insofar as re-conceptualising the difference between gender identity
and biological sex in the context of forensic science and promotes a deeper understanding
of how these scientific, legal and social concepts are so intricately related. Changes to legislation are recommended to provide vulnerable minorities with a right
to gender privacy, as an extended right to privacy in the Constitution.
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Description
Thesis (PhD)--Stellenbosch University, 2022.
Keywords
Forensic genetics -- Law and legislation -- South Africa, DNA fingerprinting, Gender identity -- Law and legislation -- South Africa, Gender privacy, Criminal investigation, UCTD