Initial thoughts on the Golden State Killer case
The past few days have been tough ones for those genealogists who — like The Legal Genealogist — love the ability to integrate DNA results into family history.
The disclosure that law enforcement officers in California had used genealogical databases and particularly GEDmatch to identify, and now arrest, a suspect in a decades-old serial rape-and-murder spree has raised some profound concerns about the legality and ethics of that use.
And even in these early days, it’s crystal clear that there are no easy answers here.
On one hand, it’s impossible not to be thrilled that the Golden State Killer case may finally be closed. This is the name given to a serial killer, serial rapist, and serial burglar who is believed to have committed at least 12 murders, more than 50 rapes, and more 120 burglaries in California starting in June of 1976 and ending abruptly in 1986.2 If the charges hold up, if the evidence is really there, if a jury can be found to try the case fairly and convict him, 72-year-old Joseph James DeAngelo may finally pay the price for this crime spree.3
On the other hand, there is something deeply unsettling in the use of test results from what most test-takers consider a recreational use of their DNA by law enforcement in criminal investigations, when they had no idea the police could do such a thing.
This doesn’t just pose a risk that we as test takers may be identified as a crime suspect, that we alone may be impacted. Autosomal DNA is shared by those nearest and dearest to us — this may result in our DNA being used as part of a case against our relatives all the way out to second, third and fourth cousins — including siblings, our children, our grandchildren, even our as-yet-unborn great grandchildren.
Trying to find a balance between those who are cheering this use of DNA databases and those who abhor it as a breach of their — and their family’s — privacy isn’t going to be easy. And we’re only in the early stages of trying to figure this out. To give you an idea of what we’re facing as a research community, the list of questions posed by Leah Larkin, Ph.D., in her blog post “Genealogy and the Golden State Killer”4 is just the starting point in the discussion our community has to have.
Here, for me, in this early stage of this analysis is my bottom line: The hallmark of ethical genealogy is the utmost respect for the privacy of living people and the disclosure of information about living people only with their consent.
We’ve always known that genealogical research of all kinds raises deep ethical concerns when the research involves living people for any reason. And we have ethical codes in place to guide our decision-making in those cases, such as the National Genealogical Society’s Guidelines for Sharing Information with Others, which advises in relevant part:
Aware that sharing information or data with others is important and that it needs continuing support and encouragement, genealogists and family historians consistently
• respect the restrictions on sharing information that arise from the rights of another… as a living private person; …
• inform people who provide information about their families how it may be used, observing any conditions they impose and respecting any reservations they may express regarding the use of particular items;
• require evidence of consent before assuming that living people are agreeable to further sharing or publication of information about themselves;
• convey personal identifying information about living people — such as age, home address, genetic information, occupation, or activities — only in ways that those concerned have expressly agreed to; …
• are sensitive to the hurt that information discovered or conclusions reached in the course of genealogical research may bring to other persons and consider that in deciding whether to share or publish such information and conclusions.5
Applying these basic, common-sense rules, we understand that the stories of living people aren’t ours to tell. So when the combination of Grandpa and Grandma’s marriage record and Aunt Mary’s birth record makes it abundantly clear that the bedding preceded the wedding, for example, we understand that Aunt Mary doesn’t want that fact plastered all over the internet. It’s her story, not ours.
DNA testing as a genealogical research tool raises those same ethical concerns as well, in spades. The ability of this resource to tell us what no paper document can — that, for example, the father identified on a birth certificate isn’t the biological father at all — raises a huge potential to disrupt the lives of living people.
And that means that using this tool ethically must be our highest priority.
As with all of our research that discloses information about living people, the hallmark of ethical DNA testing is informed consent. People have to know (or at least have the opportunity to know) in advance what their test results may be used for. Nobody I know uploaded their data to GEDmatch knowing that it could be used by police to look for suspects in criminal cases.
I have no objection philosophically or ethically — and I believe most genealogists have no fundamental disagreement — with using genealogical DNA testing data to solve mysteries of many kinds:
• identifying war dead to repatriate the remains of service members;
• identifying the John and Jane Does who lie unknown in morgues and pauper’s graves;
• even perhaps identifying crime victims.
All of these uses help reconnect families, and reconnecting families — even after death — is one of the most compelling reasons why people choose to do genealogical DNA testing.
But allowing data from tests taken to reconnect families to be used without advance notice and informed consent for investigative purposes by law enforcement with the aim of finding the perpetrators of crime — a move guaranteed to shatter the families whose loved ones are accused because their DNA was used in those investigations — doesn’t sit well at all.
And it’s even more unsettling that this was done without a search warrant, without court approval, without oversight of any kind. There are laws in place in many states — including in California — that require the police to get court approval — a warrant, based on probable cause — even to search their own law enforcement databases when what they’re trying to do is find familial DNA (a link to the criminal through the use of the DNA of a family member).
Because some genealogical databases like GEDmatch are open to the public, it may be legal to search them for evidence in a criminal case… but what’s legal isn’t always what’s right.
DNA testing for genealogy has always been like a china shop. I think of the DNA results — the links that allow us to reconnect our families — as delicate and priceless vases on glass shelves.
Right now, there’s a bull loose in that china shop.
At this beginning of this hard discussion that our community must have, my own view is … we’d better start figuring out how to rein that bull in before those often irreplaceable vases are broken, forever.
- See Judy G. Russell, “Gedmatch: a DNA geek’s dream site,” The Legal Genealogist, posted 12 Aug 2012 (https://www.legalgenealogist.com/blog : accessed 28 Apr 2018). See also ibid., “Updated look at GedMatch,” posted 26 Mar 2017. ↩
- See Dan Barry, Tim Arango and Richard A. Oppel Jr., “With Taunts and Guile, the Golden State Killer Left a Trail of Horror,” New York Times, 28 Apr 2018 (https://www.nytimes.com/ : accessed 28 Apr 2018). ↩
- Remember, we have to say this may be the case here: DeAngelo has only been charged. He has not been tried or convicted. ↩
- Leah Larkin, Ph.D., “Genealogy and the Golden State Killer,” The DNA Geek, posted 26 Apr 2018 (http://thednageek.com/ : accessed 28 Apr 2018). ↩
- National Genealogical Society, Guidelines for Sharing Information with Others, PDF online (https://www.ngsgenealogy.org/ : accessed 28 Apr 2018). ↩