Trigger warning: This post discusses sexual consent.
Baby Garnet
On June 26th, 1997, a maintenance worker tasked with reopening a remote campground in Michigan’s upper peninsula made a wrenching discovery: the decaying body of a newborn girl in an outhouse tank. According to contemporaneous reporting, the initial autopsy indicated she was full term or nearly so but couldn’t determine whether she had been born alive. Her body had been in the tank for weeks. No one knew who her parents were.
Without a cause of death, the county prosecutor wasn’t sure what charges could be filed, but authorities were investigating the death as a homicide. As the case grew cold, the newborn became known locally as Baby Garnet, after the Garnet Lake Campground where she was found.
Detectives reopened the case in 2017 and ultimately contracted with Identifinders International to identify Baby Garnet’s parents using forensic genetic genealogy (FGG). By May 2022, genealogist Misty Gillis had a lead: Jenna Gerwatowski, a 21-year-old who wasn’t yet born when Baby Garnet died. According to CNN, a Michigan state police detective told Jenna “Your DNA was a match” to Baby Garnet and that Gillis would call her. Gillis asked for Jenna’s FamilyTreeDNA password so she could upload the DNA to another database. Ultimately, Jenna’s grandmother was charged with murder and could be facing a life sentence.
I have a lot of questions about this case. There are inconsistencies between the CNN article and what Jenna herself has said on TikTok—for example, did she test at FamilyTreeDNA or AncestryDNA?—and some aspects of this story simply do not make sense. Misty Gillis declined to comment. Until the truth comes out, I want to focus on a different issue: informed consent.
Red Flags
I’ve been writing about informed consent since the early days of my blog and advocating for its use for FGG since the Golden State Killer was arrested in 2018. I’ve even suggested specific text that could be used in an informed consent agreement. All to little avail. FGG has been described as “the Wild West” for good reason.
The tide may finally be turning.
The nascent Investigative Genetic Genealogy Accreditation Board’s definition of informed consent reflects the principles I’ve advocated for years. They define it as “an individual or their legal proxy’s written voluntary permission given with the understanding of the possible consequences and full knowledge of the possible risks and benefits of sharing their Genetic Data File” (IGGAB Professional Standards and Accreditation Requirements, April 2024, p. 9).
There’s one essential component of this definition that deserves attention: informed consent must be voluntary. No one should be encouraged, much less pressured, into making one specific choice over another. This is especially true when there is a conflict of interest, for example, if the person asking for consent will benefit personally or professionally from that choice.
Regardless where Jenna tested, she clearly did not give consent (much less informed consent) to be part of a forensic genetic genealogy investigation. From the CNN article, “She wondered how [the detective] had even obtained her DNA.” If she had consented, she wouldn’t have wondered. In May 2022 when Jenna took the detective’s call, FamilyTreeDNA opted almost everyone in to forensic matching by default, so if she tested there, she was most likely opted in without her knowledge or consent. AncestryDNA explicitly forbids law enforcement to use their database, so Jenna didn’t consent if she tested there, either.
Strike one.
Jenna apparently had no idea of the risks of participating in the FGG search, like your grandmother could be charged with murder. She was unaware of the risks even after she agreed to help. In her TikTok video (around 5:30), she says “We uploaded my DNA into this worldwide database and it comes back as a distant relative.” Wow. I can’t imagine a reputable genetic genealogist telling someone a half-niece match is a distant relative, so we can only assume that Jenna clearly did not understand what she was getting into and thus could not give informed consent.
Strike two.
Finally, Jenna did not consent willingly. She initially refused to participate. It wasn’t until the police reached out to other family members, who told her it was an “emergency,” that she agreed to help. Per CNN, “She was terrified police would think she was trying to hide something because of her refusal to speak with Gillis.” Consent under pressure is not actually consent.
Strike three.
The Sex Test
Informed consent is more than just not saying no. You need to understand exactly what you’re agreeing to, you must agree beforehand, and you can’t be pressured into making one choice over another. If the implications are hidden from you, you can’t really consent.
If you’re ever unsure about informed consent, there’s a simple way to cut through the fog: the sex test. If it wouldn’t be consent for sex, it’s not consent for FGG matching.
- If you weren’t aware that you engaged in sex, did you give consent?
- If someone withheld information about a consequence of sex, did you give informed consent?
- If you were intimidated or pressured into sex, did you consent voluntarily?
For each of those questions, replace “sex” with “FGG matching,” and the ethical path should be clear. Forensic genetic genealogy is not there yet, but it’s getting closer.
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Hey!
I’m trying out Substack as an alternative blogging site. I may stick with it; I may not. If you’d like to check me out there, you can find me at thednageek.substack.com.
I haven’t read about this case elsewhere. What was the emergency for a case over 20 years old? If police lied to obtain consent, that’s not informed consent either.
That’s a good question. For me, it’s telling that the CNN article based on court documents and Jenna’s own version on TikTok largely agree with one another about what happened.
Definitely something to think about. Thank you for sending the email.
Thank you for reading!
Thank you. The analogy you offer is very clear.
Well done Leah.
I’ve been thinking about what is perhaps a side scenario to all of this. I’ve talked quite a few relatives and even a few potential relatives into taking dna tests. I’m careful to be sure they are always opted out of law enforcement in their profiles. For my own samples I’ve opted in on a couple of the sites. I wonder where the ethics of that situation lie if “our” dna matched someone being researched by law enforcement? Seems like it would be no different than if my relatives’ samples didn’t exist but I’m sure I haven’t thought through all of the permutations of potential situations.
One thing seems sure with all of these muddy waters. As difficult as it often is to convince someone to take a test to assist with purely historical family tree questions this is going to make those requests a lot harder for both the requesting and consenting parties.
To be honest, I don’t think it’s possible to opt out.
Some of the most respected FGG practitioners have used “loopholes” to see opted out profiles at GEDmatch. Some of the very same people who were cheating are now trying to establish an accreditation board to promote ethics.
We know of several cases—probably just the tip of the iceberg—that were uploaded to MyHeritage. If they can upload to MyHeritage, they can upload to the public sides of GEDmatch and FTDNA to see people who are opted out. Rumor has it that FGG practitioners keep AncestryDNA kits on hand for target testing.
This field cannot police itself. What FGG needs is federal legislation with oversight, mandatory reporting, and serious consequences for noncompliance.
Excellent, thoughtful post. I really enjoyed reading it but was so angry at the way the family was treated by the dunces in the forensic science side of things.
Thanks for the info I wondered out of the blue why there are so many murder investigations going on at FTDNA? Only because of that am I finally going to get my Haplogroup what I consider confirmed even though FTDNA has labeled for years that my Haplogroup has been confirmed? The difference is that the Keddie Murder Investigation from Placer County, California, USA that occurred in 2021 revealed through Big Y Results that the suspect plus 2 other men share Identical Y DNA with me and my Big Y Match Upstream from A-L1090 through E-CTS9320. For 3 and a half years I’ve been asking for SNPS to be split,and new SNPS to be added forming new branches. I was always told that me and my Big Y Match needed more Matches, and that even 5 people weren’t enough for all of that? Only now that the other 2 men Upgraded,and the Murder Investigation became Central has FTDNA finally agreed. Now we are being split off from the thousands of other men forming a parrallel branch from where E-CTS9083 is being split to E-CTS9320. We will be given a new different branch off of E-CTS9320 that all 5 men will be assigned the 2 other men plus murder suspect are being given a new designation off of the new branch off of E-CTS9320 while our E-FT30969 will also split off of the new branch. I’m told first next year the FTDNA Phylogenetic Expert has to confirm the information that my Group Project Admin just informed me about what I have been waiting 3 and a half years for? Something to look for I was told by the end of January or February at the latest for Haplogroup E-FT155200
When a case involves DNA of an unknown actor in a violent crime, we know that person’s relatives will match to him or her in a commercial DNA database. The person who left the DNA at the crime scene is innocent until proven guilty by a jury of their peers and they have not consented to be monitored or searched and neither have their family members. If law enforcement has an identified suspect they need a warrant to tap their phone and listen to conversations with friends and relatives. I am not sure if they need a warrant to follow friends and relatives of suspects hoping that it will lead to locating their identified suspect but they probably should have some sort of administrative approval to follow innocent friends and family who have not consented to tell law enforcement where the named suspect is. When DNA is left behind at a crime scene Police have a suspect they just don’t know that person’s name and they need to essentially follow that suspects relatives without their knowledge or consent in order to locate the suspect. Consenting testers are the springboard to identifying by name the relatives on the path between the suspect and the consenting tester and those other relatives may even be in the DNA database as well without having given consent but the investigator can identify them by name through the consenting tester’s family tree or through family trees of individuals who have not consented because they have no DNA in the database, or by census records or obituaries and things of that nature. The process of connecting the consenting tester to the suspect inevetibly involves a host of relatives, friends and associates who have not consented to participate in the apprehension of the person who left DNA at the crime scene.
I think law enforcement should have to get a warrant from a judge in order to monitor the friends and relatives of the suspect who left DNA at the crime scene. Whatever legal steps have to be taken to conduct monitoring and surveillance of non consenting friends associates and relatives of criminal suspects should be issued before they upload DNA to commercial databases and every one of their matches should be treated as relatives who have not consented to be monitored in order to locate their relative suspected of a crime. Only if they are contacted by law enforcement in the specific case and consent to tell them where the suspect is should it be considered informed consent. When a person posts an obituary listing a person’s life story and the names of all their deceased and living relatives, including spouses names and the town and state where those relatives live, none of those people have given consent to help locate a relative suspected of committing a crime. When people are named on census records none of those people undertook that activity having consented to help locate relatives who committed a crime but the information is none the less utilized by investigators. A policeman can’t just pick a pretty girl and start following her around running searches on her to find out who her friends and associates are and start following them to find out her location – the search activity by law enforcement has to be warranted and if it is warranted then then it is understood that the people being followed have not given consent to be followed. I don’t think that informed consent to help law enforcement from DNA testers is exactly the right way to go. It puts responsibility for apprehension of a family member on the back of the consenting tester and the investigation is going to involve a ton of non consenting relatives. The missing element here is that law enforcement needs to get a warrant at the very beginning of their search before contacting a genetic genealogist and everyone that suspects dna matches to should be regarded as non consenting no different than if they had posted an obituary naming relatives in a news paper and no different than had they posted a family tree naming relatives to a family history site. We are public people we live in the public realm and if a warrant has been issued by a judge that information can be sought out collected and organized in a way that will lead law enforcement to their criminal but we have a reasonable expectation of privacy and a constitutional right to not be subjected to unwarranted search and seizure of our effects. Police are starting these investigations without a warrant and by doing so in many ways it equates to an officer just stalking that pretty girl. Members of DNA sites should be informed when they sign up that law enforcement could present a warrant to access information in their data base, just as law enforcement could present a warrant to your email provider if your correspondence was relevant to the apprehension of a criminal. It would actually be to law enforcement’s benefit if they did have to secure a warrant because then they could access records of all the people the suspect was related to and it would be to the public’s benefit because police would be following the same process for warranted search they have to follow to get access to all other information that we’ve not consented to share