Bodies of Science and Law: Forensic DNA Profiling, Biological Bodies, and Biopower
| DOI | http://doi.org/10.1111/j.1467-6478.2012.00575.x |
| Author | Victor Toom |
| Published date | 01 March 2012 |
| Date | 01 March 2012 |
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 1, MARCH 2012
ISSN: 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 to
agents 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 by
analysing 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'.
INTRODUCTION
In recent years, sociological studies of forensic science have gained momen-
tum. In particular, forensic DNA profiling has received a considerable
degree of scrutiny from scholars drawing upon approaches from science and
technology studies.
1
These studies have addressed various issues including
150
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 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
victor.toom@northumbria.ac.uk
Alex Faulkner and Christopher Lawless gave me the opportunity to contribute to the
volume, reviewed and commented on earlier drafts, and corrected the English. Valuable
comments 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 support
and 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 Simpson
trial' (1998) 28 Social Studies of Science 713; M. Lynch, `The discursive production
of uncertainty: the OJ Simpson ``Dream Team'' and the sociology of knowledge
machine' (1998) 28 Social Studies of Science 829±68; M. Lynch, S. Cole, R.
the most plausible interpretation of DNA evidence, questions regarding the
most credible expert witness, and how rules of evidence contribute to the
scope and content of DNA evidence. In addition to this research, recent
studies on forensic DNA profiling have focused on the application of
forensic DNA profiling in criminal investigations and the (inter)national
governance of DNA databases.
2
Comparatively little attention has been
devoted to the relation between forensic DNA profiling, biological bodies,
and bodily samples.
3
It is this nexus which is addressed in the present
contribution. 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 forensic
DNA profiling in the Netherlands, and how, as a result of the continually
advancing applications of DNA profiling, biological bodies and bodily
samples become ever more important markers for the pursuit of judicial
truth, administering justice, and crime control.
I elucidate the scientific and legal mechanisms which have evolved for
transferring jurisdiction over an individual's biological body to agents of
judicial power, including police, public prosecutor, and the judiciary. I
identify these by first analysing an example of a medical case and secondly,
by introducing forensic DNA profiling by way of a simplified example. I
then articulate the identified mechanism by briefly examining the work of
Michel Foucault and Giorgio Agamben on biopower. In the next section, I
analyse Dutch forensic genetic practices, and how biological bodies and
bodily samples are fitted into those practices, by tracing how forensic DNA
technologies and laws to regulate them have co-evolved over the past twenty
years. I demonstrate that different forensic genetic practices emerged ± one
directed at individuals, another at populations ± and that these different
practices come with different normative issues. In the concluding section, I
summarize the findings and draw overarching lessons.
IDENTIFYING THE MECHANISM
Most people would intuitively accept the proposition that `I own my body'.
Such a statement underscores the individual mastery over a particular body
and delineates the private from the public. Yet, if you are under suspicion or
151
McNally, and K. Jordan, T ruth Machine. The Conte ntious 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, `The
Pru
Èm 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, materializing
crimes' (2010) 17 European J. of Women's Studies 363±77.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
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