the dealer sugested that I should move the ring that the hatch latches onto a little farther in towards the inside of the car but that hasn't helped. this problem is intermittent. I don't think it is the latch anymore, i think it is one of the door switches.
the switch for the latch appears to be part of the handle assembly as far as I could tell without taking it apart, I just pulled all the plastic covers off of the rear hatch
I think the rubber is an integral part of the door switches, but I may be wrong on that one, I haven't got around to checking the resistance individually but it is going to be hard to check with the problem being intermittent.