Your Panties Are Not Safe: The Scoop on Underwear DNA Tests

BlogHer Original Post

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My mother and I thought of these ideas in the same way we think of antiques: cute, if totally outdated. Outdated, that is, until an e-mail stumbled into my inbox from a a scientist friend at USC, the subject of which read: "DNA tests underwear to prove infidelity."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."

Undergarments drying on clothesline

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 entered your dwelling and you were not cohabiting. Then you could have a criminal burglary charge -- if you can prove they entered your dwelling with the intent to steal. But a five-dollar pair of panties may not be enough to have a criminal charge. This is far-fetched. Most law enforcement agencies will say, 'What, are you kidding? This isn't worth prosecuting.'"

"What if they write about it on the internet or publish it somehow –- and it's true, so it's not defamation?"

"If they really mess with you, I guess you could sue for emotional damages, but that's a flimsy tort."

I messaged Matthews back.

"So essentially, there is legal recourse in the event of someone stealing or damaging your property, assuming you can prove intent even if they were welcome in your house, and some damages above the statutory amount," I said.

"Yes, you understand it well," he replied. "However, intent to steal or damage the property would not be required for a general civil claim. Just the fact that the property was taken or damaged (whether intentionally or negligently) could give rise to a claim."

"But there is no law that protects you from this sort of thing," I said, astounded. "There is nothing written that says, 'a person's clothing or DNA stains is his or her own,' as there is with correspondence."

"On the privacy side, I see little protection when the expectation of privacy is low," Matthews answered. "Think of it as having someone taking your picture. If you are out at a public event, there is no expectation that you would not be seen and should not be photographed. However, if someone set up a camera to take pictures of you without your knowledge in your own home, you would have a higher level of privacy expected. But when you have invited someone into your home and allow them to take a picture, there is a no real expectation of privacy.

"However, you raise a very interesting issue that may relate here about the property rights in your stuff. I think that the privacy argument would be weak, but what about someone coming into your house and taking something that belongs to you? Even if they bring it back, they did not have permission to take the item, and there could be liability for doing so. That is where I think there would be a better argument. The weakness, however, is the damages. If someone 'borrows' your clothing and has it tested and then returns it, you have little damages for the property claim. So, unless there is some specific statute on point, I would not expect there to be much protection here. And if the clothing were left at their place, the claim that they shouldn't be able to do anything with it gets even weaker."

I cruised back to the Chromosomal Laboratories sites, trying to brainstorm some kind of answer. That's when I noticed a small note on their order forms: "At this time we cannot accept samples from the state of New York."

Interesting. I called up the lab and got transferred to one of their analysts, who confirmed the information.

"We can't test anything from New York," she told me. "The state is very particular about this. I am not sure why this is, but it's related to our accreditation. Without prescription from a doctor or request from law enforcement, we can't test anything from the state of New York."

I did a search on agencies that granted relationship testing labs accreditation and came up with the American Association of Blood Banks (AABB), which listed Chromosomal Laboratories as an accredited relationship testing facility. A search on Google for "DNA testing New York law" turned up the Wikipedia page for parental testing, which stated, in part:

In the state of New York, only legally admissible testing is allowed by law and requires either a physician prescription or court order, labs must also have New York State Department of Health accreditation.

A New York attorney -- whose firm has a strict policy about being quoted in articles, so he shall remain unnamed -- confirmed the information, citing Civil Rights Law 79-I: "No person shall perform a genetic test on a biological sample taken from an individual without the prior written informed consent of such individual... Notwithstanding the provisions ... genetic tests may be performed without the consent of the person who is the subject of the tests pursuant to an order of a court of competent jurisdiction."

In an e-mail, he elaborated:

The law is not directed at consumers; in other words, it doesn't prohibit an individual from ordering it. It just prohibits any lab from conducting the test unless ordered by a physician or other person authorized by law. So effectively, an individual can't order it without a doctor's note.

Specific penalties exist for genetic privacy violations in New York, though they do not consider DNA to be personal property.

But Alaska does. By law, Alaska requires consent to perform a genetic test, and obtain and disclose genetic information. They define genetic information and DNA as personal property and also have penalties for genetic privacy violations.

The information sent me down a long hall of statutes and civil codes, each with its own language and specifications. To date, some twelve states require consent to perform a genetic test: Alaska, Arizona, Florida, Georgia, Massachusetts, Michigan, Nebraska, New Mexico, New York, South Carolina, North Dakota, Vermont. Nineteen states have penalties for violations of genetic privacy; however, the biggest concern seems to be with the disclosure of genetic information, more than the means such is acquired. For example, whereas five states consider genetic information to be personal property, only Alaska considers DNA personal property.

I think that as more laboratories make their services accessible to private individuals, we're going to see some changes in the way states view DNA. Amateur sleuthing is one thing –- if intrusive –- but science doesn't stop there, so why should people?

"Is that really something that you'd want to have legislation to control, however?" Matthews asked me during our message exchange on the topic. "Could there be a better protection somehow?"

That's the thing: I don't know. For the time being, I'm pulling out the antique wisdom my great-grandmother relayed to my mother and disposing of my underwear.

RESOURCES

State Laws Pertaining to Surreptitious DNA Testing (PDF)

Genetic Privacy Laws at the National Conference of State Legislatures

AV Flox is the editor of Sex and the 405 -- what your newspaper would look like if it had a sex section.

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