Forensic DNA Phenotyping: Regulatory Issues

Columbia Science and Technology Law Review, Vol. 9, No. 1, 2008

TILT Law & Technology Working Paper No. 002/2006

45 Pages Posted: 28 Mar 2007 Last revised: 28 Sep 2010

See all articles by Bert-Jaap Koops

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Maurice H.M. Schellekens

Tilburg University - Faculty of Law (TILT); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Date Written: August 1, 2006

Abstract

Forensic DNA phenotyping is an interesting new investigation method: crime-scene DNA is analyzed to compose a description of the unknown suspect, including external and behavioral features, geographic origin and perhaps surname. This method is allowed in some countries but prohibited in a few others. Most countries have not yet taken a stance on this. This article addresses the question to what extent this investigation method should be allowed. The relevant regulatory issues are analyzed: the right of people not to know what their DNA tells about propensities for diseases or other propensities, data protection and privacy, stigmatization and discrimination, and the 'slippery slope' argument. These are serious issues indeed, but their importance should not be overestimated. Current literature and legislatures seem overcautious. Phenotyping should be allowed for externally perceptible traits, such as hair color, and for non-sensitive behavioral traits, like left-handedness or a propensity for smoking. It should not be allowed for many propensities for diseases and for sensitive other information like a propensity for homosexuality or aggressiveness. The middle category of somewhat but not too sensitive traits could be allowed, for example, for early apparent medical disorders, like albinism or teenage-onset alcoholism. Ethnic origin and surname phenotyping are also compatible with fundamental rights, provided measures are taken to contain the risk of discrimination. It is also worth considering to inform the suspect only of the fact of forensic phenotyping, leaving it to the suspect himself to request the test results.

Keywords: Privacy, data protection, DNA, phenotyping, stigmatization, discrimination, forensics

JEL Classification: K14, K10, K39

Suggested Citation

Koops, Bert-Jaap and Schellekens, Maurice H.M., Forensic DNA Phenotyping: Regulatory Issues (August 1, 2006). Columbia Science and Technology Law Review, Vol. 9, No. 1, 2008; TILT Law & Technology Working Paper No. 002/2006. Available at SSRN: https://ssrn.com/abstract=975032 or http://dx.doi.org/10.2139/ssrn.975032

Bert-Jaap Koops (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Maurice H.M. Schellekens

Tilburg University - Faculty of Law (TILT) ( email )

Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

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