I guess the legal question is "was her DNA medical records" or "was her DNA evidence". If it was the former, I'd say she has a case because of HIPAA. If the latter, not so much.
Really, we may want to make sure we have a system where victims of crimes aren't afraid to come forward for help, for fear that coming forward may result in an increased likelihood that they themselves are caught for a crime they previously committed.
Even typing it out, it doesn't feel right. We obviously want to catch criminals, even those who are themselves victims of crime. But we also need to be practical and recognize that breaking cycles of victimization wherever you can is a social good, and that anything that makes people too afraid to interact with the law enforcement and justice system is problematic, because it expands the outlaw class.
I don't know if that's right, but it is my immediate thought.
People tried protesting this decades ago when the government started collecting fingerprints for everything. Get a federal job, give your fingerprints. Get a nursing license, give fingerprints. Get a carry permit, give your fingerprints. It didn't work then and I'm not sure it'll work now.
These are privileges. Justice after being raped is a right. If you’re running from arrest, it’s valid to bar you from nursing others or carrying a concealed gun.
https://en.wikipedia.org/wiki/Inmates_of_Attica_Correctional...
You do not have a right to submit evidence.
You do not have a right to have an investigation conducted.
You usually do not have a right to even have the police show up.
You may not like that, but that is the law. Criminal law enforcement, including prioritization and de-prioritization, is the prerogative of the Executive.
If it wasn't illegal to use her DNA in this fashion, the law needs to be changed to make it illegal. The police have myriad tools to pursue property crime, and it does more good than harm to remove this one from their hands.
Note: HIPAA was designed to make access to medical data easier, not harder and it's not some magic law that protects people's health records from prying eyes.
And Yes, this IS a barrier to victims who are also criminals seeking help when they need it.
A criminal prosecution is not your day in court. A crime victim is not a party to a criminal proceeding. There are maybe a handful of cases where the concept was even contemplated, and it was on a motion to consider a victim's out-of-court admissions as evidence under R. Evid. 801(d)(2).
New Mexico v. Vallejos (N.M. App. 2019) ("The State's Motion to Amend, containing Victim's statements, does not fall within the hearsay exemption in Rule 11-801(D)(2) because Victim is not a party opponent."); Ohio v. Ingram (Oh. App. 2016) ("We re-affirm our holding in Browning that an alleged victim who testifies as a witness for the state is not a party-opponent within the meaning of Evid.R. 801(D)(2).")
Notably, these provisions require law enforcement to do certain things in order to receive some PHI. For example, under some circumstances, law enforcement must represent that they do not intend to use the PHI against the victim.
If they do so under false pretenses, fully intending to disclose that information to (for example) another detective working on a burglary case, they are guilty of a 5-year, $100,000 felony. 42 U.S.C. § 1320-d.
Again, for the current case, in which it appears the complaining witness provided the sample directly to law enforcement, your comment is true enough. However, it is misinformation to say that HIPAA does not apply to law enforcement or require them to handle data a certain way.
HIPAA does not obligate law enforcement to handle data in a particular way.
>As a detainee of the CBP under the suspicion of drug trafficking, you are subject to search (external and internal). Nurse *** was performing her duties as a nurse of a detainee under the jurisdiction of the Border Patrol (CBP) and therefore not a violation of the Nurse Practice Act
That is, if you are merely detained by police (no court order, warrant, or arrest needed) any act a medical professional performs is automatically unreproachable and considered "under the jurisdiction" of the police rather than the medical care provider. Per my correspondence with the board merely being detained allows them to do whatever they like, including touching you to initiate medical care, without your consent and then share it. This is not my legal opinion but the actual response of the board in my state.
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>That has absolutely nothing in common with this scenario. Nobody detained this woman to collect DNA samples, she volunteered it. And we're talking about HIPAA not the Nurse Practice Act.
This is so far off base I think you must be trolling. Releasing patient information to police has everything to do with HIPAA. "External and internal search" has everything to do with extracting DNA from a patient. The Nurse Practice Acts typically enable boards to punish for improper violations of patient confidentiality, they needn't use the word HIPAA instead of NPA to cover activity protected by HIPAA. Surely the circumstances are not the same, but then again I never said they were. Your statement 'nothing in common' is clearly patently wrong to the point I can only guess it is a purely inflammatory statement.
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>This person voluntarily gave the police that DNA in 2016.
First of all -- I haven't made a claim that it wasn't voluntary. But now you've made the claim it is. This is quite possibly the case, but can you cite where she voluntarily gave it to police, and that she was never detained (which per my correspondence with board, merely her being detained at some point would authorize medical professionals to basically do whatever they like).
If it is the way my state's board has told me, I could voluntarily go to the police, voluntarily have the hospital dna test me and then the officer could briefly 'detain' me as a witness and then take the DNA without my consent. From the article here it's not clear to me how this played out.
>"Nobody detained this woman"
The issue based on my correspondence with the board is that they merely could detain her at any arbitrary time in the future and then whatever a medical professional does at that point, including giving up a DNA sample, would be unreproachable. Not legal advice again, just what my board has told me.
I think you are misunderstanding the article. Rape kits are voluntary. When someone volunteers to have a rape kit done, the point is to share that information with the police so that they can catch the rapist. This person voluntarily gave the police that DNA in 2016.
This is in the article.
I specifically complained to the board regarding this and was told anytime a nurse/doctor is acting upon request of police they are exonerated from whatever happens afterwords. In fact the board in my state's position is that a medical professional can perform warrantless searches on behalf of police, and they are relieved of any personal liability.
Basically, in theory maybe HIPAA applies. In practice the police and regulatory boards act in lock-step to automatically make any interaction between medical professionals and police beyond reproach.
Regardless of whether it was technically medical or evidentiary, it's astoundingly stupid (from both a judicial and ethical standpoint) to provide any disincentive to a woman getting a rape kit ffs.
Note also: HIPAA hardly protects anything. Not clear at all that it would apply in this case no matter what. HIPAA is unfortunately mostly a scary word that people use as a rhetorical device to win arguments.
Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house?
The entirety of the forensic process is evidence. It's scary that there are people who might think differently. It's a fundamental cornerstone of our Constitutional process.
> Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house?
Yes. A person accusing another person of a crime does not get to pick and choose what evidence to turn over.
If you were accused of raping someone, and there were such a diary, would you not want your defense counsel to be able to review the fifteen diary entries previous to that, planning out how to frame you for such a crime?