New consent forms have been issued by police forces in England and Wales asking victims to share data including text messages, emails and photos; if they refuse, police have said, it “may not be possible for the case to proceed”.
Yet we’ve already seen a worrying trend of irrelevant details being used against alleged victims. Last year, I spoke to a victim of sexual assault who had her computer searched after she made an allegation against a university peer; she told me that a “stupid online BDSM quiz” she’d taken in her first year of university had ended up being used against her when she reported the assault.
In the same year, a man was acquitted of raping a teenage girl after his defence lawyer told the jury to “look at the way she was dressed”. “She was wearing a thong with a lace front,” he said, a fact that had absolutely no bearing on the veracity of her claims.
“Sending someone a sexy picture of yourself doesn’t mean you want to have sex with them; even saying you want to have sex with someone or saying that you will have sex with them doesn’t mean you can’t withdraw consent.”
It’s not hard to see how phone data could be misused in this way — text messages that seem to indicate consent, sexts or naked photographs exchanged. But sending someone a sexy picture of yourself doesn’t mean you want to have sex with them; even saying you want to have sex with someone or saying that you will have sex with them doesn’t mean you can’t withdraw consent. Intimate details of women’s lives are already being brought up, raked over and used against them in court; why would victims have faith in that system when it demands yet more?
Difficulty reporting assault is often used to explain why reporting rates are so low. Research from Rape Crisis found that of the 85,000 women and 12,000 men who experience rape, attempted rape or sexual assault every year, only 15% report to the police. Only 8% of reported rapes end up with a prosecution.
Victims often cite a lack of trust in the criminal justice system, and the fact that rape conviction rates are at their lowest level for ten years seems, to some extent, to explain the lack of reporting. Adding a further layer of difficulty to the reporting process does not speak volumes for the Crown Prosecution Service’s dedication to improving those figures.
The odds are clearly stacked against those reporting when it comes to prosecution — so why should they also have to hand over reams of (often irrelevant) personal data too? As one Rape Crisis centre points out, the process is “intrusive, invasive, exposing, scary and confusing” — in other words, the last thing that someone who has just experienced a traumatic event needs to go through.
It’s problematic from a privacy perspective, too. Human rights barrister Adam Wagner pointed out on Twitter that a response demanding data might not be proportionate: “a phone may have relevant info about an alleged crime but it will inevitably have an enormous amount of information which has nothing to do with the allegations,” he writes. Victims may be concerned that details irrelevant to the case might be picked up and used against them — evidence of drug taking, to use one example.
In ordinary litigation, Wagner notes, a solicitor handles disclosure; relevant details are handed to the police, irrelevant details are filtered out. And there’s no reason why this shouldn’t be the case here, either — the burden of proof is not, and should never be, on the victim. Complainants’ data may also be stored, another privacy issue that the police have not adequately addressed.
Rape victims are already dismissed out of hand at every stage of the reporting process; if they eventually do make it to court, their sexual histories and personal lives are dragged over the coals as if they are the ones on trial. This new demand simply strengthens this tendency, insinuating that at the heart of any rape allegation is a fundamental question about a woman’s character.
What we should be doing? Trying to understand exactly why it is that so many victims feel terrified of reporting and then addressing those issues. Making them feel as if reporting to the police will not just be an exercise in retraumatisation; making them feel as if they might, one day, get justice, whatever that looks like for them. When someone reports a sexual assault or rape, they’re not the ones on trial – it’s crucial we do more to ensure they’re not being punished for a crime of which they’re the victim.
