What is the crime if men seek confirmation that children are theirs?
by Barry Pearson
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Policing the collection of samples

Walking away with someone else's DNA is not inherently bad behaviour. It would be impossible to make the collection of samples from a person an absolute offence.

It is almost impossible to be close to someone and not take away his or her DNA. Obtaining a DNA sample is often a trivial activity that is just like other activities that cannot be made criminal offences, especially for people who are close. It could not sensibly be a criminal offence simply to remove a child's hair from a hairbrush. Or to pick up a sticking plaster that covered a cut finger, or chewed gum, a licked envelope, a handkerchief, or an old toothbrush.

To make the collection of samples an offence, it would have to be qualified. For example, it could be "collection of a sample with intent to use it for a paternity test". This may be plausible in the case of a buccal swab, which has few other uses. For the other types of sample, the intent could only be apparent later. It would need detection later in the process.

Another way of qualifying the collection of samples is by combining it with the sort of offences we already recognise. There are already laws about assault, theft, human rights, harassment, data protection, and similar. The law could be "assault and collection of a DNA sample", or "theft and … (ditto)". But if the penalties are the same as for the existing offence, there would be no point in making this a special case. If the penalties are greater than for the existing offence, the prosecution will have to be able to show that the intention was to collect a sample. This suffers the problems of the previous paragraph. In what cases would "assault and plucking hair" be a greater offence than other forms of assault?

Suppose the way of defining the offence is to combine it with an existing offence. This will typically fail to deter unofficial paternity tests. A common use of them is within a household. Assault, theft, harassment or rights abuses are not normally necessary to obtain the sample.

It is possible simply to use the standard laws of assault, theft, human rights, harassment, data protection, etc. These are offences with clear victims and detection methods, where the law tries to solve agreed problems. Those are a suitable basis for laws about paternity testing. Perhaps those laws need to be reviewed to ensure they don't permit taking DNA samples.

Another approach would be only to penalise the collecting of the sample once the sample has been submitted for a paternity test. That would need the commissioning of the test to be detected. That is discussed in the next section.

Suggestions to ban the collection of samples appear mainly to come from the UK. Examples quoted in the UK to justify this approach include California's Kerkoriam versus Bing case, and fears about unauthorised testing of the Royal Family. Both are examples of "third party" paternity testing. Their issues don't resemble those of the "personal knowledge" paternity tests that are the subject of this paper. These cases don't illuminate the problem to be solved.

It may be possible to deter the taking of samples from celebrities. It normally won't be possible to prevent the taking of samples from one's own (putative) children. This stage appears to be the wrong place to legislate. Why do some people favour it?

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Page last updated: 25 July, 2003 © Copyright Barry Pearson 2003