Freiburg, Germany, is an idyllic university town located at the edge of the Black Forest. It is the sunniest spot in Germany. And the site of 4 brutal crimes in the past 6 weeks. One man was beaten to death near the main train station. One 13-year-old girl gang-raped by four young men.
And most disturbingly, two young women, one 19 and on 27 years old, were raped and murdered in apparent random attacks -- one just behind the main football stadium, one in a small community 30 kilometers from Freiburg. Police think it's possible the same man might be behind both attacks. So, there may well be a serial rapist/murderer currently active in Freiburg now. Or perhaps two. I would say this kind of thing is almost unknown in Germany, but we all know that's no longer the case. Still, it's got all of Freiburg on edge.
And as the video below from the conservative weekly Junge Freiheit shows, the police are being hampered by German law from pursuing the killer. They found a DNA sample which they believe is from the killer at one of the rape/murder crime scenes. Using modern DNA technology, it's possible to determine the eye color, hair color, and ethnicity of someone from a good DNA sample. In fact, it's possible to generate a fairly good likeness of their face, as this photo accompanying a New York Times article shows:
As you can see, the images aren't perfect, but they are certainly a far cry better than the recollection of a traumatized witness or someone who saw a man run past them in a dark alley. In particular, DNA is extremely good at predicting ethnicity and skin tone, which can allow investigators to immediately cross huge pools of suspects off their list and focus only on a narrow subset. Another article looks at the use of this technology in an American criminal case.
But not in Germany.
According to Section 81(e) of the Criminal Procedure Code, DNA can be used only comparison to potential suspects, determining family relationships, and determining gender. Every analysis going beyond these is expressly forbidden. Here is the provision in English:
(1) Material obtained by measures pursuant to Section 81a subsection (1) may also be subjected to molecular and genetic examinations, insofar as such measures are necessary to establish descent or to ascertain whether traces found originate from the accused or the aggrieved person; in so doing the gender of the person may also be determined by examination. Examinations pursuant to the first sentence shall also be admissible to obtain similar findings on material obtained by measures pursuant to Section 81c. Findings on facts other than those referred to in the first sentence shall not be made; examinations designed to establish such facts shall be inadmissible.
The prohibition, like so many others in German law, is based on the idea of data protection -- in a society in which mass surveillance caused so much harm last century, there must be strict limits on the amount of data the state can gather on its citizens. As I've pointed out before, this idea trumps many other legitimate public concerns, such as preserving historical monuments. And here, it trumps public safety. Here's a video from the conservative website Junge Freiheit featuring an interview in which the Freiburg policy confirm that they are obeying this restriction. The head of the German police union complains about it, and citizens interviewed in Freiburg are dumbfounded that the law prevents police from using a reliable, proven strategy which could lead to the apprehension of a possible serial killer in their midst.
This is yet another cultural mismatch between the USA and Germany. I have explained restrictions such as this to many colleagues in the USA. These colleagues are mostly criminal defense lawyers and civil libertarians. That is, they spend each day defending the rights of criminals, and forcing the state to uphold its case. To say they don't have an authoritarian bone in their body is an understatement -- they don't have an authoritarian cell in their body.
Yet when I describe things like this, many of them register, to their own shock and amazement, disapproval and consternation. Sure, DNA isn't miraculous, it has to be handled carefully, it's not a panacea. But it is an extremely powerful tool which, used properly, can help ensure the guilty are imprisoned, and which has been used now hundreds of times to free the innocent from unjust confinement. Building a profile from DNA, as long as it's done responsibly according to the best scientific protocols, is definitely a legitimate means of law enforcement. Especially since it is likely to be much more reliable than eyewitness testimony.
Yet in Germany, only the right-wing website Junge Freiheit considers this an important policy issue. I have never seen it addressed by the more left-liberal press.
So there you have it: DNA profiling is so mainstream in the USA that even most civil libertarians approve of it. In Germany, apparently, only the right-wing does.