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Bodies of science and law: forensic DNA profiling, biological bodies and biopower (2012)

How is jurisdiction transferred from an individual’s biological body to agents of power such as the police, public prosecutor and judiciary, and what happens to these biological bodies when transformed from private into public objects? These
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  JOURNAL OF LAW AND SOCIETYVOLUME 39, NUMBER 1, MARCH 2012ISSN: 0263-323X, pp. 150±66 Bodies of Science and Law: Forensic DNA Profiling,Biological Bodies, and Biopower Victor Toom*  How is jurisdiction transferred from an individual's biological body toagents of power such as the police, public prosecutors, and the judi-ciary, and what happens to these biological bodies when transformed  from private into public objects? These questions are examined byanalysing bodies situated at the intersection of science and law. More specifically, the transformation of   `   private bodies' into `   public bodies'is analysed by going into the details of forensic DNA profiling in the Dutch jurisdiction. It will be argued that various `   forensic genetic practices' enact different  `   forensic genetic bodies'. These enacted  forensic genetic bodies are connected with various infringements of  civil rights, which become articulated in exploring these forensic genetic bodies' `  normative registers'. INTRODUCTIONIn recent years, sociological studies of forensic science have gained momen-tum. In particular, forensic DNA profiling has received a considerabledegree of scrutiny from scholars drawing upon approaches from science andtechnology studies. 1 These studies have addressed various issues including 150 ß 2012 The Author. Journal of Law and Society ß 2012 Cardiff University Law School. Published by Blackwell PublishingLtd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA * Northumbria University Centre for Forensic Science (NUCFS), Northumberland Building, Newcastle upon Tyne NE1 8ST, England  Alex Faulkner and Christopher Lawless gave me the opportunity to contribute to thevolume, reviewed and commented on earlier drafts, and corrected the English. Valuablecomments were also provided by an anonymous reviewer of the Journal of Law and Society , Bart van der Sloot, and Katharina Paul. I want to thank them all for their supportand for stimulating me to proceed.1 J. Aronson, Genetic Witness: Science, Law, and Controversy in the Making of DNA Profiling  (2007); S. Jasanoff, `The eye of everyman: witnessing DNA in the Simpsontrial' (1998) 28 Social Studies of Science 713; M. Lynch, `The discursive productionof uncertainty: the OJ Simpson ``Dream Team'' and the sociology of knowledgemachine' (1998) 28 Social Studies of Science 829±68; M. Lynch, S. Cole, R.  the most plausible interpretation of DNA evidence, questions regarding themost credible expert witness, and how rules of evidence contribute to thescope and content of DNA evidence. In addition to this research, recentstudies on forensic DNA profiling have focused on the application of forensic DNA profiling in criminal investigations and the (inter)nationalgovernance of DNA databases. 2 Comparatively little attention has beendevoted to the relation between forensic DNA profiling, biological bodies,and bodily samples. 3 It is this nexus which is addressed in the presentcontribution. More specifically, it will analyse how biological bodies and bodily samples are fitted into forensic DNA practices situated at the inter-section of (forensic) science and (criminal) law. The article analyses forensicDNA profiling in the Netherlands, and how, as a result of the continuallyadvancing applications of DNA profiling, biological bodies and bodilysamples become ever more important markers for the pursuit of judicialtruth, administering justice, and crime control.I elucidate the scientific and legal mechanisms which have evolved fortransferring jurisdiction over an individual's biological body to agents of  judicial power, including police, public prosecutor, and the judiciary. Iidentify these by first analysing an example of a medical case and secondly, by introducing forensic DNA profiling by way of a simplified example. Ithen articulate the identified mechanism by briefly examining the work of Michel Foucault and Giorgio Agamben on biopower. In the next section, Ianalyse Dutch forensic genetic practices, and how biological bodies and bodily samples are fitted into those practices, by tracing how forensic DNAtechnologies and laws to regulate them have co-evolved over the past twentyyears. I demonstrate that different forensic genetic practices emerged ± onedirected at individuals, another at populations ± and that these different practices come with different normative issues. In the concluding section, Isummarize the findings and draw overarching lessons.IDENTIFYING THE MECHANISMMost people would intuitively accept the proposition that `I own my body'.Such a statement underscores the individual mastery over a particular bodyand delineates the private from the public. Yet, if you are under suspicion or 151 McNally, and K. Jordan, Truth Machine. The Contentious History of DNA Fingerprinting  (2008).2 R. Hindmarsh and B. Prainsack (eds.), Genetic Suspects. Global Governance of   Forensic DNA Profiling and Databasing  (2010); B. Prainsack and V. Toom, `ThePruÈm regime: Situated dis/empowerment in transnational DNA profile exchange'(2010) 50 Brit. J. of Criminology 1117±35; R. Williams and P. Johnson, Genetic Policing. The Use of DNA in Criminal Investigations (2008).3 An exception is: C. Kruse, `Forensic evidence: materializing bodies, materializingcrimes' (2010) 17 European J. of Women's Studies 363±77. ß 2012 The Author. Journal of Law and Society ß 2012 Cardiff University Law School  convicted for a crime, or diagnosed with a specific disease or mentalcondition, the statement may no longer apply; you can be arrested, searched,taken into custody, hospitalized or forced to take medications. The body thatonce was yours becomes an object of incrimination, incarceration, care ortreatment. When jurisdiction over a body is transferred from an individual toagents of power like police and medics, those bodies transform from `private bodies' into `public bodies'.An analysis regarding the transformation of private into public bodies is provided by American social geographer David Delaney. 4 He describes acase where an inmate is diagnosed with a mental disorder. The patient/ prisoner receives pharmaceutical treatment, yet withdraws consent fortreatment after he experiences deleterious effects caused by the medication.Bypassing his will, the state legally continues to administer the drugs to theinmate and hence he becomes the `unwilling recipient of a sort of ``syntheticsanity''.' 5 In other words, his body is put under restraint, `his skin andmuscles are penetrated by the state apparatus of the syringe, his circulatoryand nervous systems are colonized by the authorities aided by pharma-ceutical corporations.' 6 In this act of putting his body under restraint ± thatis, when a private body is transformed into a public body ± several normativeand legal issues arise: individual consent and autonomy are bypassed and hisright to an inviolable body is breached. His body is not `his' anymore. Or, asDelaney puts it, the inmate's body becomes `a material slab, a zone betweenhis self and the outer institutional environment.' 7 Before any individual can be made a ward of court, evidence that he is notable to take care of himself should be provided. In the example provided byDelaney, it can be assumed that the inmate was tested both mentally and physically (using the Diagnostic and Statistical Manual of Mental Disorders ,DSM), observed and interviewed, and that all collected data was evaluated.These results are compared with other scientific data, like fMRI scans orneurochemically tested samples. Individuals can only be made wards of court if the results point to the same mental condition. Hence, scientificevidence warrants the legal decision of transferring jurisdiction over a bodyfrom the individual to an authority ± such body becomes constituted as a body of science and law .The criminal justice system is a domain where private bodies are renderedinto public bodies routinely. Several mechanisms are in place to achieve this,the most straightforward being the arrest or imprisonment of individuals.Such public bodies can be regarded as `bodies of law' as legal mechanismsare in place to warrant arrests, and so on. Bodies of science and law have 152 4 D. Delaney, `Making nature/marking humans: law as a site of (cultural) production'(2001) 91 Annals of the Association of Am. Geographers 487±503.5 id., p. 499.6 id.7 id. ß 2012 The Author. Journal of Law and Society ß 2012 Cardiff University Law School   been around since as long ago as the nineteenth century, when scientificmethods, like dactyloscopy (fingerprinting) and anthropometry (biometrics)were already being applied to make representations of individuals and their bodies. 8 Since the introduction of forensic DNA profiling in criminal justicesystems, bodies of science and law have changed considerably, not least because the latter technology analyses bodily samples. The example belowwill introduce forensic DNA profiling and its intimate relationship with bodies and bodily samples: A break-in was reported by a witness who saw a man smashing in a window.After the police had arrived, a crime scene examiner collected a piece of glassand secured a bloodstain probably originating with the burglar. The bloodtrace was submitted to a forensic laboratory where a DNA profile was obtainedand subsequently uploaded to the national DNA database. In the meantime, the police arrested an individual on suspicion of having committed the burglary.He was asked to provide a biological reference sample, which he refused to do.He was then physically forced by two police officers, who opened his mouth totake a buccal swab. The sample was processed at the forensic laboratory and itmatched the DNA crime scene sample. Such a match is usually expressed as astatistical number (the random match probability), stating that the chance thatsomeone in the population at large would have the same DNA profile as lessthan one in a billion. 9 Agents of power like the police, public prosecutor, and judge are, since theintroduction of forensic DNA profiling in criminal justice systems, advanc-ing further into personal spheres, thereby rendering the personal into publicobjects. 10 The radical shift that has occurred is that crime investigation andcriminal litigation have become intimately connected with body samples andthe production of genetic knowledge about those samples, and hence itssrcinators. It is in this capacity that the mechanism that enables forensicDNA profiling resembles key aspects of Michel Foucault's analysis of `biopower'. First, genetic and subsequent digital representations of bodiesare produced, enabling the comparability of bodily samples srcinating froma subject and bodily traces collected at crime scenes. Such representationscontain knowledge of the srcinator's body that goes beyond `the science of its functioning'. 11 Second, authorities involved in criminal investigation,who have gained procedural powers to collect biological samples fromsubjects, process the samples into DNA profiles, and store samples and 153 8 S.A. Cole, Suspect Identities. A History of Fingerprinting and Criminal Identification (2001).9 The example is derived from V. Toom, Dragers van Waarheid. Twintig Jaar  Forensisch DNA-onderzoek in Nederland  (`Carriers of Truth. Twenty Years of Forensic DNA Profiling in the Netherlands') (2011).10 Alcohol and drug tests are also dependent on the use of body samples. Yet, police inthe Netherlands have never had legal powers physically to compel individuals tosupply body samples.11 M. Foucault, Discipline and Punish. The Birth of the Prison (1977) 26. ß 2012 The Author. Journal of Law and Society ß 2012 Cardiff University Law School   profiles in biobanks and databases for many years. So, the authorities havegained mastery over those bodies and body parts for a specific amount of time which `is more than the ability to conquer them'. 12 Mastery over bodiesand the ability to produce knowledge about them are central to Foucault'sanalyses regarding the workings of power and its relationships with bodies. 13 Yet, to appreciate what goes on in forensic DNA profiling, and to be ableto analyse the normative consequences of the routine criminal justicemechanism that renders private bodies into public bodies, it is essential toenquire briefly into political philosophy and legal theory. Everybody in ademocratic state of law is entitled to civil rights. Freedom of speech,religion, association, and opinion are some examples. Such rights, especiallyin continental liberal democracies, are laid down in a system of rights usuallyreferred to as the Constitution. Rights of the `self' are, in the context of forensic DNA profiling, regarded as personal lives and the integrity of individual bodies. In order to protect these realms against the power of thestate and its institutions, like the police, the Office of Public Prosecution, andthe judiciary, individuals, their bodies and personal lives are assigned civilrights.More specifically, turning to the Netherlands as a case study, personallives and individual bodies are protected by articles 10 and 11 of the DutchConstitution, which states that everyone shall `have the right to respect forhis privacy' and `have the right to inviolability of his person'. 14 These rightsare not absolute rights as they can be curtailed according to `restrictions laiddown by or pursuant to an Act of Parliament'. 15 In other words, personallives and individual bodies can be violated by authorities involved incriminal investigation when conditions described in the Code of CriminalProcedures are met. With regard to Dutch DNA profiling, the Code of Criminal Procedures delineates when privacy and the right to an inviolable body do not apply to an individual, and typically include suspects andconvicted offenders (see further below). The bodies and personal lives of these categories of individuals are excluded from Articles 10 and 11 of theDutch Constitution. Their bodies and bodily samples are, echoing GiorgioAgamben's influential work on contemporary mechanisms of biopower,legally in a `state of exception'. 16 154 12 id.13 id.14 Ministry of the Interior and Kingdom Relations, The Constitution of the Kingdom of  the Netherlands (2002). Both Articles are in concordance with Article 8 of theEuropean Convention on Human Rights and Article 12 of the Universal Declarationon Human Rights. In Anglo-American jurisdictions, violations of the body aresometimes defined as an infringement of `spatial' privacy, whereas personalinformation is usually called `informational' privacy: see G. Laurie, Genetic Privacy. A Challenge to Medico-Legal Norms (2002).15 Ministry of the Interior and Kingdom Relations, id., p. 6.16 G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998). ß 2012 The Author. Journal of Law and Society ß 2012 Cardiff University Law School
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