Demanding rape victims hand over their phones is an intrusion too far

https://www.theguardian.com/commentisfree/2019/apr/29/rape-victims-phones-police-guidelines

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Last year the number of rape charges in Britain fell by 23%, plummeting to the lowest rate in a decade. The director of public prosecutions, Max Hill, claimed when the figures were announced that this was as a result of weaker cases being screened out. As we know, many victims of rape are reluctant to come forward to the police anyway. They already know that evidence can be incredibly difficult to gather. After undergoing the ordeal of reliving and recounting such an experience, the possibility that the allegation may not meet an opaque quality threshold acts as a further disincentive to seeking justice.

So it’s depressing to learn this week that victims of alleged rapes will be told to give up their mobile phone and all attendant data to the police. Not to do so, it is made clear in new digital consent forms, could mean that “it may not be possible for the investigation or prosecution to continue”. The police are also reserving the right to use any data gathered digitally in other criminal prosecutions or investigations. So any messages or data that implicate you or those you have communicated with in separate offences could be pursued and investigated.

Rape cases ‘could fail’ if victims refuse to give police access to phones

This could have disastrous effects for women in vulnerable groups, especially those who have engaged in sex work or who have current or previous addictions, who are much more likely to be the victims of rape and assault.

The data will also be shared with the legal team of the accused if it can help the defence case.

The rationale of all this is to prevent a repeat of the recent high-profile collapse of rape cases, in which evidence withheld from the defence undermined the prosecution. The case of Liam Allan, whose trial for rape was abandoned after police were ordered to hand over phone records relevant to the case, was a very public embarrassment for the Metropolitan police.

But this move uses the wrong tools to tackle the wrong problems. In the case of Allan and others, the police and Crown Prosecution Service already had the relevant phone data, but were criticised for failing to hand over the evidence. The cases fell apart because pertinent material was wrongly withheld.

This is quite different from making the handing over of one’s digital history a virtual condition of reporting assaults. This makes an intrusive process still more intrusive and will mean fewer people coming forward in an area in which lack of reporting is already a major problem.

The process of reporting rape and assault is notoriously difficult. There is some understanding of this in the interview process for victims; specialist suites are recommended for initial investigations and statements. But those who have experienced attacks still struggle with the implication that many women lie about rape and assault, or bear some of the blame for what has happened to them. The incredibly low conviction rate does nothing to convince women that rape and violence against them are taken seriously.

In that context, if victims know they are also likely to have the entire contents of their phone downloaded, that they may be deprived of their device for months, and that the alleged perpetrator and their lawyers may be given access to messages, photographs and social media accounts, many may decide this further invasion is too much to bear.

The formalisation of the process of accessing digital records – blunt, far-reaching and onerous – will only increase the fear of vulnerability and violation for people reporting these offences.

The average mobile phone is capable of holding enough data to fill 5 million A4 pages. Demanding the right to access all this (along with the threat not to proceed if access is denied) is wildly disproportionate. The police and prosecution service need to acknowledge the fact that rape conviction rates are so low because of the lingering assumptions of a misogynist culture. The move to formalise access to mobile phones will make a bad situation worse.

There is a reason we have passcodes on our phones: not just to secure personal banking, but because they function as an extension of the self, with thoughts and communications we wouldn’t ordinarily make public. This move will only see fewer victims come forward, and even fewer reported rape cases make it to court. Putting the victim under investigation is perverse, and designed only to protect the reputation of the justice system, rather than deliver justice itself.