By | June 27, 2022

Revised legislation would mandate DNA collection on conviction for some crimes. Original House bill called for collection on arrest, which law enforcement and prosecutors say they prefer to keep communities safe. But ACLU applauds revision.

by Kate Martin June 22, 2022

The North Carolina General Assembly meets in the State Legislative Building in Raleigh.

A bill that would require people convicted of domestic violence offenses to provide their DNA to the state passed out of a state Senate committee Wednesday morning.

However, the bill differs from a version of House Bill 674 that passed with near unanimity out of that chamber, which would have required DNA collection upon being charged with assault on a female, a misdemeanor charge often associated with domestic violence.

The change could unnecessarily leave perpetrators of crimes long ago unidentified in communities throughout the state, those in favor of an arrest standard for DNA collection say.

“Research has clearly shown that suspects arrested for domestic violence often cross over and commit other serious offenses, including rape,” said John Somerindyke, a former Fayetteville Police Department lieutenant who led the department’s cold-case special victims unit.

“If this bill passes, cases will slip through the cracks. Violent criminals, including rapists, will continue to prey on victims.”

The revised legislation
Sen. Danny Britt, R-Robeson, said the goal of the revised bill is to capture the DNA of those who commit domestic violence and assault on a child under age 12.

Passing a requirement to collect DNA upon arrest “could put added strain on law enforcement” to collect the DNA and pay for testing without providing the resources to do so, while absent evidence that someone who is charged but not convicted of domestic violence is more likely to commit a sex offense, Britt said.

Britt’s revision of the bill drew applause from the American Civil Liberties Union.

“We have serious privacy concerns with the expansion of mandatory government DNA collection, especially from people who have been arrested and are presumed innocent,” an ACLU spokesperson told Carolina Public Press on Wednesday.

“The amendments to limit the expanded DNA collection to individuals who have been convicted of these charges is a significant improvement; however, we urge further discussion about the privacy issues related to government DNA databases.”

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Bill author Rep. Billy Richardson, R-Cumberland, said with the new version of the legislation, law enforcement can seek DNA under what’s called a nontestimonial identification order, and he expects the language of the bill to be amended to reflect this.

However, current state rules on nontestimonial DNA collection say only prosecutors can request the DNA, not law enforcement.

There are more barriers to using a noncustodial identification order, said Jason Arnold, chief assistant district attorney in Western North Carolina’s 43rd Prosecutorial District.

“I haven’t needed to do one in about 10 years,” Arnold said. “We do search warrants every day, and because there is a lot of overlap, we typically use those rather than seek noncustodial orders.”

Wouldn’t have helped in dismissed cases
When Somerindyke led the Fayetteville Police Department’s cold-case sexual assault unit, he examined the criminal histories of 28 cold-case suspects of 51 sexual assaults. Of those, 13 DNA-confirmed suspects had prior domestic violence arrests.

Among those cold cases was an assault against a woman named Linda. Nearly 30 years ago, she was taken from her job cleaning offices in Fayetteville by three men who assaulted her and left her for dead in the woods of nearby Harnett County. Her assault was known by the spray-painted phrase on the hood of her white Toyota: “3 Horsemen.”

The state found a match to the DNA in her rape kit after Roy Junior Proctor submitted to DNA collection as a condition of his probation for an unrelated conviction — however, he had been arrested earlier in 2013 for assault on a female.

Proctor wasn’t connected with Linda’s assault then because state law doesn’t require collecting DNA for the 2013 arrest. Ultimately, his charge in that case was dismissed. He currently is awaiting trial in the Cumberland Detention Center for kidnapping, first-degree rape, first-degree attempted murder and other charges related to Linda’s attack.

If the current version of the legislation now before the Senate were in place back in 2013, it’s entirely possible that a DNA match for Linda’s case would not have been detected then, either.

“I can’t believe law enforcement or prosecutors would be on board with this,” Somerindyke said. “There are already dozens of criminal offenses on the books which require DNA collection upon arrest.”

Cumberland County District Attorney Billy West said the Conference of District Attorneys favored the bill in its original form.

“We still support the bill (of collecting DNA) upon conviction,” West said, although an arrest standard is preferred.

“The victim (of domestic violence) in many cases is reluctant to go forward, and so, an assault on a female charge is going to be dismissed probably more often in other crimes of violence. Therefore, I think it’s important that (DNA should be collected) upon arrest and not just upon conviction, particularly on that charge.”

State law currently does not require DNA collection for arrest for or conviction of assault on a female, assault of a child under 12 or violating a domestic violence order of protection.

“What we’re doing is we’re moving the needle where statistically it has been shown to relate to people who are committing crimes of sexual assault,” Britt said.

Of course, not everyone who commits domestic violence will go on to commit sexual assaults, West said. “There is a correlation, in some cases and in some relationships, of an escalation of violence to include sexual assault.”

North Carolina already collects DNA upon arrest for more than a dozen other crimes, including murder, various maiming offenses, felony assaults and many other felonies. The current state law also says the state must destroy the DNA if the accused is acquitted, if the charges have been dismissed or if there’s no conviction or active prosecution.

Attorney General Josh Stein’s office said in a statement Tuesday afternoon, “The Senate’s version of the bill is an improvement to our current DNA collection laws by adding the DNA of thousands of people convicted of certain crimes to our database.

“That said, we’d like to continue working to strengthen protections against sexual assault even further by supporting proposals to collect DNA upon arrest for these crimes. Doing so will make our communities safer.”

Deanne Gerdes, executive director for Rape Crisis Volunteers of Cumberland County, was far blunter.

“If, in fact, it passes with these changes, legislators totally missed the point on why this is needed and once again have told women in our state they just are not very important,” Gerdes said.

“North Carolina had a chance to change all of this. Instead, they continue to let rapists roam among us.”

Britt said the state Senate could vote on the amended bill as early as Thursday. If it passes, the bill would have to return to the state House for a concurrence vote.