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My mother's grandmother once gave her a piece of unsolicited advice: if you want to cheat on your husband, don't worry, just dispose of your underwear. My grandmother had her own ideas –- which she dispensed to me herself, also unsolicited –- that one should make best friends with the staff because they're the ones who change your sheets and thus know all your "comings and goings."
My mother and I thought of these ideas in the same way we think of antiques: cute, if totally outdated. Outdated, that is, until an e-mail stumbled into my inbox from a a scientist friend at USC, the subject of which read: "DNA tests underwear to prove infidelity."
"Worried your man is cheating?" asks Discovery's Discoblog. "Don't rely on hunches, send his undies to the lab."
They detail some of the tests employed by the Phoenix-based Chromosomal Laboratories, Inc., one of the main labs specializing in treating intimate wear like crime scene investigations, which call for whatever clothing item contains suspicious stains as well as the submitter's cheek swabs (DNA collected from inside the mouth using a Q-tip). They offer UV-light sweeps, microscopic analysis for sperm heads, and a test for prostate-specific antigen and vaginal fluid.
My first impulse -– based on yet another piece of unsolicited advice, this one relayed by my father -– was to immediately reference the law. Clearly, having your panties or shirt or dress or any other personal effect by your significant other constitutes an invasion of privacy.
In a piece for the Phoenix New Times, which broke the story, an analyst for Chromosomal by the name of Melissa Beddow stated that taking someone's undergarments to test for DNA was not an invasion of privacy because the tests were not used in court.
However, a review of privacy law regarding intrusion upon seclusion indicates that no publication or court proceeding is necessary to constitute a violation of privacy –- the legal wrongdoing essentially occurs at the time of intrusion, whether this is done by monitoring, investigating, observing or examining a person's private matters.
Of course, this hinges on expectation of privacy –- to assert there was intrusion, one must be able to show that she took measures to ensure that an item's privacy was secured. There's no reasonable expectation of privacy when you live with someone. Or when you leave an item at their house.
It was time for an attorney, so I got in touch with Mark R. Matthews, a professor at Whittier Law School.
"You are right to look at the 'reasonable expectation' standard," Matthews told me. "My opinion would be that as soon as you have a sexual relationship with someone, the reasonable expectation of privacy diminishes. However, the expectations would change based on the depth of the relationship, but I think that even a brief encounter would be enough."
A relationship with a person can be interpreted as an invitation into your life. In the matter of cohabitation, it's even more difficult to prove any sort of expectation of privacy. Was it possible that there was nothing in place to protect us from the intrusion of these sorts of tests?
I called my friend Michael, a corporate attorney who moonlights as my sexy law resource, and who takes more liberty to play in the realms of the far-fetched (and for this reason prefers to remain largely unidentifiable).
"This is not my area, so I'm speculating out loud," he warned. "From a legal standpoint, there are civil torts relating to committing trespass to chattel, which is accessing the personal property of another. If, say, the panties were ruined in the testing process, you could say it's conversion, which is the interference of the ownership of another party."
Chromosomal Laboratories does state that a small cutting of the item must be taken, measuring between two and three millimeters (0.08 to 0.1 inches).
"But there have to be damages," Michael warned. "This is not something you can really press charges over unless the panties in question were valuable, at least over the statutory amount. This applies also to larceny."
"So essentially, there are things you can try to do after the fact, but there is no real protection against this happening to you?" I asked him.
"Privacy is not generally a criminal thing when its someone who's welcome in your life," he clarified. "It can be, if they do something really underhanded to get your panties, or if someone
