NCJ Number
225497
Date Published
November 2008
Length
57 pages
Annotation
In this discussion paper, Australia's Model Criminal Law Officers' Committee (MCLOC) of the Standing Committee of Attorneys-General examines the issue of nonconsensual genetic testing and proposes draft model offenses to criminalize it.
Abstract
The paper defines "nonconsensual genetic testing" as "when bodily samples are taken and genetically tested without the knowledge or consent of the individual from whom they have been obtained." The law in Australia provides some legal protection against the harms arising from nonconsensual genetic testing under interpretations of the tort of trespass to the person and assault, theft and fraud, breach of information privacy, and under forensic procedures laws. After surveying the existing legal framework, the MCLOC has concluded that the harms arising from nonconsensual genetic testing are not fully addressed in Australia. Therefore, it proposes model nonconsensual genetic testing offenses. The conceptual framework of the model indicate that the offenses are not intended to override existing legislation and settled case law on consent and other relevant issues; nor does it make unlawful currently lawful medical practices. According to the model, it is an offense to obtain any bodily material of another person with the "intention" of causing a genetic test to be conducted using that bodily material without the consent to the genetic test of that other person, and knowing about or being reckless as to that lack of consent. It is also an offense to "cause" such a genetic test, knowing about the lack of consent of the subject of the test. In addition, it is an offense to "disclose" or "use the results" of such a genetic test without the consent of the subject to that disclosure or use. The offenses extend to deceased persons because of the potential effects of such genetic testing and its disclosure on surviving family members.