A STUDY ON IDENTIFYING SUSPECTED SERIAL SEXUAL

OFFENDERS USING FORENSIC DNA EVIDENCE

- B.MADHANA1
- C.G.EESHWAA2

ABSTRACT

The majority of sexual assaults reported to the criminal justice system are not
prosecuted. Researchers and legislators are concerned that this long-standing practise
permits perpetrators to perpetrate more sexual assaults. Establishing credible links between
two or more instances is required to determine whether reported sex offenders commit other
sexual assaults. Biological evidence in sexual assault kits also known as rape kits provides
another way to analyse how often reported sexual offenders conduct subsequent sexual
attacks by matching DNA across many cases to the same preparators. When law enforcement
investigates a case of sexual violence DNA evidences can break or make the outcome. DNA
evidence has become a routine part of investigating and prosecuting in all crimes. It is very
important tool in achieving justice for the survivors of sexual assault. Sexual Assault forensic
exam increases likelihood of identifying the perpetrator and also holds perpetrator
accountable. It also prevents future sexual assaults from occurring.
KEYWORDS

Evidence, Assault, Investigation, Perpetrator, Sexual offenders.

INTRODUCTION

According to national epidemiological data, one out of every five women will be
sexually assaulted at some point in their lives, with male perpetrators being the most
common. Does this suggest that one out of every five men will sexually assault a woman over
their lifetime, based on these statistics? Because many criminals are serial sexual attackers
who assault two or more people in separate episodes over time, there are more victims than
perpetrators. Until now, social scientists have researched repeated sexual offending in one of
two ways. The researchers looked at court records to see how many people who have been
convicted of sexual offences are re-arrested and re-convicted of similar acts. In criminal cases
around the country, DNA evidence is being used more than ever before to condemn the guilty
and exonerate individuals who have been wrongfully accused or convicted. Because of their
expanded position, victim care providers must be able to comprehend the potential
1
Assistant Professor, School of Law, Sathyabama Institute of Science and Technology, Chennai.
Email: madhana.baskaran@gmail.com Phone: 9940307718.
2
IV Year, B.A.LL.B(H.), School of Law, Sathyabama Institute of Science and Technology, Chennai.
Email : eeshwaarks@gmail.com Phone: 6383550954.
significance of DNA evidence in their clients situation. DNA or deoxyribonucleic acid, is the
human body’s basic building block and DNA is found in almost every cell. Blood DNA is
same to saliva, skin tissue, hair and bone DNA. A person’s DNA remains constant
throughout his or her life. With the exception of identical twins, no two persons have the
same DNA, making DNA a valuable investigative tool. As a result, DNA evidence acquired
at a crime scene might be connected to a suspect or used to rule out a suspect. Biological
evidence such as hair, skin cells, sperm or blood might be left on the victim’s body or on
other components of the crime scene after a sexual assault. When properly collected, DNA is
compared to known samples, a suspect’s location at the crime scene can be determined. In
order to effectively use DNA as evidence, it may be necessary to collect and analyse
elimination samples in order to determine the DNA’s exact source. Elimination samples can
be taken from anyone who had legitimate access to the crime scene and left biological
material behind. To account for all of the DNA found on the victim or at the crime scene in a
rape case, it may be necessary to get an elimination sample from everyone who had
consensual intercourse with the victim within 72 hours of the alleged assault.3

EVIDENCE COMPILATION

Important concerns in detecting, collecting, transferring and keeping DNA evidence

should be understood by victim assistance providers, crime scene technicians, nurse
examiners, and other medical experts 4. If DNA evidence is not identified at the site of the
crime or on the victim, it may not be collected or become tainted or deteriorated. Victims of
sexual assault should not change clothes, shower or wash any portion of their body following
the incident to aid with collecting. Semen, saliva, and skin cells, for example, can be found
on clothing or bedding, beneath fingernails or in the vaginal, anal or mouth regions. 5 A
physician or sexual assault nurse examiner should gather evidence on or within a victim's
body. An emergency medical examination should be performed to treat any injuries, screen
for sexually transmitted infections and gather forensic evidence such as fingernail scrapings
and hair, following the assault. The vaginal cavity, mouth, anus and other regions of the body
that may have had touch with the offender are usually inspected 6. The examiner should take a
reference sample of blood or saliva from the victim as a control standard. Reference samples
of the victim's head and pubic hair may also be taken if hair analysis is required. A control
3
https://lawrato.com/divorce-legal-advice/is-it-legal-to-do-a-dna-test-without-court-permission-53702
4
2nd Edition Forensic DNA Evidence Interpretation, Edited by John. S Buckleton.
5
https://journals.sagepub.com/doi/abs/10.1177/0093854819896385
6
https://www.apa.org/pubs/highlights/spotlight/issue-153
standard is used to match known DNA from the victim with other DNA evidence discovered
at the crime scene in order to identify potential suspects. 7 Because DNA evidence is so
sensitive, victim care providers should always contact crime lab personnel or evidence
technicians if they have any procedural collection questions.

CONCERNS ABOUT CONTAMINATION AND PRESERVATION

When DNA from a different source is mingled with DNA from the case, the evidence
becomes contaminated. As a result, when handling evidence, investigators and laboratory
employees should always use disposable gloves, clean instruments, and avoid touching other
items, including their own bodies. Heat and humidity, as well as other environmental
conditions, can hasten DNA breakdown8. Wet or moist evidence wrapped in plastic, for
example, provides a breeding ground for bacteria that can degrade DNA evidence.
Therefore, biological evidence should be thoroughly air dried, packaged in paper and
properly labelled. Handled in this manner, DNA can be stored for years without risk of
extensive degradation, even at room temperature. For long-term storage issues, contact the
local crime laboratory. Polymerase chain reaction is the most popular type of DNA analysis.
Investigators have been able to successfully evaluate evidence samples of varying quality and
quantity thanks to PCR. The PCR technique duplicates relatively tiny amounts of DNA into
millions of copies. This allows the laboratory to create a DNA profile that can be compared
to a suspect's DNA profile. After that, a statistic is calculated to show how common this
particular DNA profile is found in the general population9.

185TH REPORT OF LAW COMMISSION

In the 1980, the courts were of the firm belief that DNA testing intrudes on the
privacy of the parties to a marriage and should not be relied upon. The conclusive proof of a
child's legitimacy was examined under section 112 of the Evidence Act and was based on the
maxim "pater est quem numtioe demonstrant," which means "the father is he, whom the
nuptials signify." Essentially, this portion was written in 1872, about 140 years ago.
However, there has been an unpredictably growing scientific temperament over the previous
three decades. Even the legal community gives the idea that this is the case. 10
7
https://www.icpsr.umich.edu/web/NACJD/studies/37134/publications
8
https://blog.ipleaders.in/dna-technology-in-indian-legal scenario/#DNA_test_and_the_Indian_legal_system
9
Halappa v. State of Karnataka, 2010 Cri L J 4341.
10
https://www.aaptaxlaw.com/CRPC/section-52-53-54-crpc-power-to-sieze-offensive-weapon-medical-
examination-request-police-accused-sec-52-53-54-of-code-of-criminal-procedure-1973.html
 In cases of theft, rape, murder, and other crimes, the courts often accept scientific
evidence. But it is beyond comprehension why the legitimacy question is left open, to be
settled by legal interpretations rather by scientific approaches. In this case, the introduction
and acceptance of DNA technology may prove beneficial in achieving the goals of justice.
The field of DNA-based research is enormous, sophisticated, and growing on a monthly
basis. Despite numerous legal challenges, mostly in the United States, no two people have
been found to have identical DNA profiles, despite the fact that the number of conceivable
presumptions greatly exceeds the world's population.
Buccal cells are discovered on the inside of a person's cheek and are collected using a
buccal swab or cheek swab. These swabs feature a cotton on synthetic tip and wooden or
plastic stick handles. To collect as many Buccal cells as possible, the collector rubs the inside
of a person's cheek. After that, the Buccal cells are transported to a laboratory to be tested.
Paternity testing would necessitate samples from both the claimed father and the child.
Samples from the putative mother and kid would be required for maternity testing. The
sample is collected and mailed to a testing lab. Some laboratories, such as the University of
Arizona's Human Origins Genotyping Laboratory, will preserve DNA samples for future
testing. All laboratories in the United States will destroy the DNA sample if the customer
requests it, ensuring that the sample will not be available for further analysis 11.
The following are the processes in the test:
1. Collecting samples: sterile swabs are used to collect cheek swab samples from the
child and father.
2. Samples and completed forms are delivered to the DNA testing facility, where they
are checked in, identified with tracking numbers and unique test codes, and given a
confidential case file.
3. DNA extractions: For the kid and parent, DNA is taken from cheek swab samples (or
blood). In order to extract DNA, phenol-chloroform is utilised.
4. DNA profiles: PCR or RFLP methods are used to create comparison DNA profiles.
5. DNA correlations: Genetic markers that are similar and dissimilar are identified, and a
test result is obtained.
"DNA testing is the most authentic and scientifically flawless method available to the
spouse to prove his claim of adultery." This should be viewed as the most authentic, rightful,
and correct means for the wife to refute the husband's claims and prove that she had not been

11
https://www.legalserviceindia.com/legal/article-1169-dna-profiling-and-indian-legal-system.html
unfaithful, adulterous, or disloyal. A bench of Justices J S Khehar and R K Agrawal stated,
"If the wife is right, she will be proven to be so."12
In a 2001 decision, the Supreme Court stated: "The outcome of a genuine DNA test is
considered to be scientifically correct." But even that isn't enough to get around Section 112
of the Act's conclusiveness; for example, if a husband and wife were living together at the
time of conception but a DNA test indicated that the child was not born to the husband, the
law's conclusiveness would remain unrebuttable."
The time for denial of DNA evidence has passed. We are aware that the current
system has shortcomings. Law must evolve in order to meet the needs of a rapidly changing
society and to keep up with scientific advancements in the country. The courts are wary of
applying this test because they believe it may violate basic human rights principles, as the
order for such a test may infringe on the person's personal liberty, which is guaranteed under
Article 21 of the constitution and must be just, fair, and reasonable. The courts further believe
that such an order may infringe on an accused person's right to due process under Article 20
(3) of the Constitution. After a long time, the Government of India has finally taken some
positive measures by proposing to use DNA tests in paternity cases under section 112 of the
Evidence Act. In its 185th report, the Law Commission of India approved the Indian
Evidence Act (Amendment) Bill, 2003, which allows for DNA tests in paternity disputes with
the consent of the father and with the permission of the court in the case of a child13.
A Parliamentary Advisory Committee has already been established to look into some
of these issues. One can only hope that this is resolved as soon as possible so that we may
move forth with full speed on this path in the pursuit of truth. So, a final solution to all of this
conundrum and confusion could be DNA mapping and comparison of a child's DNA with
that of his or her parents. The paternity of a six-month-old infant in the womb of the deceased
was decisively proven with the use of a DNA test in the recent case of State through C.B.I. v.
Amaramani Tripathi14. Furthermore, in situations of murder and rape, the courts are
increasingly relying on scientific evidence. There have even been instances where a
conviction has been reached based on medical evidence. As a result, it is past time to use
scientific competence in the decision of a child's legitimacy, particularly when it becomes a
contested ground for divorce.
12
https://www.latestlaws.com/articles/dna-test-and-criminal-law-legal-or-illegal-by-teresa-dhar/
13
http://www.legalservicesindia.com/article/2215/DNA-Test:-Adultery-as-a-Ground-for
Divorce..html#:~:text=The%20Law%20Commission%20of%20India,the%20permission%20of%20the
%20Court.
14
2014 (3) Crimes 575 (Kant.)
SECTION 53 OF CRPC, 1973

Section 53 deals with the Examination of accused by medical practitioner at the

request of police officer15. When a person is arrested on a charge of committing an offence of
such a nature and alleged to have been committed under such circumstances that there are
reasonable grounds for believing that an examination of his person will afford evidence as to
the commission of an offence, it shall be lawful for a registered medical practitioner, acting at
the request of a police officer not below the rank of sub- inspector, and for any person acting
in good faith in his aid and under his direction, to make such an examination of the person
arrested as is reasonably necessary in order to ascertain the facts which may afford such
evidence, and to use such force as is reasonably for that purpose.16

Whenever the person of a female is to be examined under this section, the

examination shall be made only by, or under the supervision of, a female registered medical
practitioner. It regulates a medical practitioner's examination of an accused at the request of a
police officer. It is claimed that if a person has been arrested and charged with committing or
allegedly committing an offence of such nature that there is reasonable foundation to think
that if his examination is taken, it will most likely determine whether the accused has
committed or not committed that offence. In such cases, it is legal for a registered medical
practitioner to examine the accused at the request of a police official with the rank of sub-
inspector or higher. The medical examination of an apprehended suspect might be done under
the direction of anyone operating in good faith in order to ascertain facts that aid in the
acquisition of true evidence.17 Furthermore, this regulation allows for the use of reasonable
force in taking the accused's examination. Section 53(2) specifies that if a female must be
examined in such a situation, the examination shall be conducted solely by a female
registered medical practitioner18.

JUDGEMENTS OF THE HON’BLE COURTS

15
https://indiankanoon.org/doc/633996/
16
https://www.aaptaxlaw.com/CRPC/section-52-53-54-crpc-power-to-sieze-offensive-weapon-medical-
examination-request-police-accused-sec-52-53-54-of-code-of-criminal-procedure-1973.html
17
https://www.legalserviceindia.com/legal/article-1169-dna-profiling-and-indian-legal-system.html
18
https://familycourts.mphc.gov.in/PDF/WORKSHOP%20ON%20FAMILY%20LAWS%20AUGUST
%202016/HONBLE%20JUSTICE%20DIPAK%20MISRA/Bhuwan%20Mohan%20Singh%20v.Meenaand
%20Ors.%20AIR%202014%20SC%202875.pdf
The case of Dukhtar Jahan vs Mohammed Farooq19, decided on January 20, 1987, is an
unpleasant one in which the High Court invalidated a maintenance judgement granted to a
small child Tarana following the couple's divorce. On 11.5.1973, the appellant Dukhtar Jahan
and the respondent Mohammed Farooq, who were previously first cousins and the children of
two sisters, married. Since the respondent divorced the appellant on 16.10.1974, the marriage
lasted only roughly 17 months. However, on 5.12.1973, while the parties were married, the
appellant gave birth to a daughter child named Tarana Farooq. The appellant requested
maintenance for herself and the kid at Rs.150 per month and Rs.50 per month, respectively.
The appellant, on the other hand, waived up her claim to maintenance for herself because the
respondent claimed that he had paid her the Maher and the amount due for the Iddat period,
as well as returning all of the dowry objects.

Despite the fact that the trial court allowed the claim, reducing the amount to
Rs.30p.m., based on the respondent's financial situation, the high court quashed the order
based on the fact that the child was born just 7 months after the wedding and was fully
mature at birth, which is not supposed to happen at such a young age. Fortunately, the
Supreme Court examined all of the evidence and upheld the lower court's order of
maintenance. If the appellant was pregnant even at the time of the marriage, she could not
have concealed it for long, and the respondent would have learned of it within two or three
months of the marriage, at which point he would have either discarded the appellant or
reported the matter to the village elders and relatives and sought a divorce. The respondent,
on the other hand, had continued to live a regular life with the appellant until the birth of the
kid.

Even the confinement appears to have occurred at his home, as the child's birth would
not have been recorded in his town otherwise. The respondent had not repudiated the infant
or sent the appellant to her parents' house soon after its birth. If he had any doubts about the
child's paternity, he would not have acted in this manner. Furthermore, the respondent's name
is included as the father of the kid in the birth registration. Despite the respondent's efforts to
make it appear that the entry in the birth register was made on the basis of information
provided by a third party, the lower courts have refused to believe the ambiguous and
uncorroborated evidence. It's also worth noting that the responder waited eleven months
before filing for divorce. The respondent has left opportunity for inference that the divorce

19
133 S.Ct. 1958 (2013)
was performed for other reasons than the appellant giving birth to a child conceived through
someone else by his inaction for such a long time.20

Finally, even if the child was delivered after a full-term pregnancy, it must be
remembered that the prospect of the respondent having access to the appellant prior to
marriage cannot be ruled out because they were related and would have been in close
proximity. All of these facts refute the respondent's claim that he did not lather the underage
child. However, despite the fact that the case was built entirely on the doubt of the "paternity"
problem, DNA testing was never used to confirm it. The Supreme Court, relying on its
decision in this case, stated that such a test should not be used to uphold a child's legitimacy
unless the facts are so compelling and conclusive that a finding that a child could not have
been begotten to the father could not be made without causing grave injustice to the father 21.

The Supreme Court further stated that courts have historically refrained from
rendering a decision lightly or prematurely, especially on the basis of flimsy evidence that
could be used to brand a child as a thug and its mother as an unchaste lady22.

“DNA test in a matter relating to paternity of a child should not be directed by the
court as a matter of course or in a routine manner whenever such a request is made," a Bench
of Justices Aftab Alam and R M Lodha said in a judgement. The apex court passed the
judgement while setting aside an Orissa High Court order which had upheld the direction of
the Orissa State Women's Commission for conduct of a DNA test to determine the paternity
dispute of a couple” decided in Rohit Shekhar v. Narayan Dutt Tiwari23.

CONCLUSION

The court's decision-making process has sped up as a result of DNA identification. It

also aids the investigating police officer in quickly locating the offender by comparing DNA
samples. Nonetheless, there is a great deal of concern about a person's privacy, which is
expressed by several courts24. The plan also has several serious flaws, such as the fact that
permission is not required in civil situations, which raises a lot of questions. It will be quite

20
https://blog.ipleaders.in/is-consent-accused-required-take-blood-samples/
21
https://blog.ipleaders.in/is-consent-accused-required-take-blood-samples/
22
ILR (2010) Supp. (3) Del. 573.
23
(2010) 7 SCC 263.
24
https://www.routledge.com/Forensic-DNA-Evidence-Interpretation/Buckleton-Bright-Taylor/p/book/
9780367778101
problematic if there is no dignity and privacy in one's personal life. It is safe to conclude that
the Supreme Court has yet to consider the constitutional legitimacy of numerous forensic
instruments for disclosing the truth during investigations, despite the fact that DNA evidence
has been used in many cases to determine guilt or innocence. To make DNA profiling
technology more reliable, legislators and courts must enact specific standards or regulations,
reducing the number of botched investigations and, as a result, the risks of a miscarriage of
justice25.

DNA profiling has posed some major problems to an individual's fundamental rights,
such as the right to privacy and the right against self-incrimination, which is why courts have
sometimes refused to accept it as evidence. In addition, the admissibility of DNA evidence in
court is always contingent on its accurate and proper collection, preservation, and
documentation, which can persuade the court that the evidence presented is reliable. In India,
there is no explicit legislation that can provide specific directions to investigating agencies
and courts, as well as the method to be followed in instances involving DNA as evidence.
However, other sections provide for medical examination of a person accused of rape and
medical examination of the rape victim, but the admissibility of these evidences has remained
in dispute due to conflicting opinions from the Supreme Court and several High Courts in
various rulings.

25
(2010) 9 SCC 747.