INNOCENT until proven guilty. That’s the foundation of our justice system . . . that it has to be proven that someone accused of a crime actually did it.
But rape victims say they are being treated differently, with police expecting them to prove they are not guilty of making up allegations.
Police are expecting rape victims to hand over their mobile phones or face having their cases dropped
This week campaigners said they would launch legal action against new forms being used by police forces in England and Wales which potentially require rape complainants to hand over their phones to police officers, or face having their cases dropped.
Big Brother Watch and the Centre for Women’s Justice said the forms were a traumatising invasion of privacy and could lead to rape victims once again being treated as suspects, not complainants in a case.
It is being called the Digital Strip Search.
One woman in the legal action reported being raped and was asked for her phone, which holds her personal data from the past seven years.
Getty – Contributor Big Brother Watch and the Centre for Women’s Justice s have called the digital strip search ‘a traumatising invasion of privacy’
She said: “The thought of strangers combing through it, to try to use it against me, makes me feel like I’m being violated once again.”
Rape victims are naturally severely traumatised by their ordeal, and even small things can bring that trauma rushing back.
Any of us would be distressed by the idea of strangers combing through our messages. It feels like a real invasion for a victim of crime.
So it’s no wonder that Victims Commissioner Baroness Newlove warned the move could lead to even fewer people coming forward.Prosecution has duty to disclose evidence
The latest figures show that only 1.7 per cent of reported rapes were prosecuted in 2018.
And those allegations will be a tiny proportion of the number of attacks that actually take place without a victim ever coming forward.
Those defending this new approach claim there is a good reason for these demands.
The police say they need to access phones in order to help prove the complainant didn’t consent to sex.
PA:Press Association Victims Commissioner Baroness Newlove has warned the move could lead to even fewer people coming forward
After all, most rapes are carried out by someone known to the victim and so a case will often hinge on what each person’s mindset was at the time.
Phones often provide the only evidence of that.
Besides, police and the Crown Prosecution Service are under added pressure not to miss evidence which could later lead to the collapse of a trial.
In 2018, the Metropolitan Police apologised to Liam Allan, a student who had been accused of 12 counts of rape and sexual assault.
Ben Gurr – The Times Liam Allan received an apology from the Metropolitan Police after they missed evidence that would have cleared his name
His trial collapsed when it emerged the complainant had told her friends that she had enjoyed her time with him, and had pestered him for “casual sex” and harboured bondage and rape fantasies.
The evidence, in messages on her phone, had been missed by officers.
The prosecution has a duty to disclose evidence which may help the defence, and this did not happen. A number of other cases collapsed at the same time after similar disclosure failings.
But despite his horrific ordeal, even Mr Allan, while backing the new move, strikes a note of caution, saying yesterday such disclosures were “a good step as long as it’s not trawling through unnecessary information”.
Alamy The police say they need to access phones in order to help prove the complainant didn’t consent to sex
And therein lies the problem. When you give up access to your life, when does someone stop trawling through it?
In these ultra-connected digital times, someone’s phone tends to have their entire life on it.
They might even have committed a crime themselves, which police then find while trawling their WhatsApp history.
They might have sensitive details about their mental health, addictions or personal relationships.
AP:Associated Press A person’s found could contain sensitive details about their mental health, addictions or personal relationships
What if someone was having a consensual affair and their phone held the evidence?
That’s no one else’s business — but suddenly it becomes part of the police’s business.
While the courts have very strict rules in place on what can be disclosed about a complainant’s sexual history, all of this will come before police officers investigating the crime.
Again, it’s not hard to see why this would put off even law-abiding citizens.A huge insult to add to hideous injury
Worse, police investigations take a long time and it’s not unusual for evidence to go missing. Some complainants say they haven’t had their phones returned for two years. That is a huge insult to add to the hideous injury of a rape.
The row about these forms also touches on a wider problem, which is that society still thinks rape generally involves a stranger jumping out in a darkened alley.
It’s rarely that, which means complainants think they won’t be taken seriously by the police if they say a friend — or even their husband — assaulted them.
It also means juries enter the courtroom expecting to be greeted by a hulking monster accused of rape, and instead find mild-mannered professionals in the dock.
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The way rape is perceived is still important, as it explains why a woman would be worried about giving up her phone.
More importantly than that, the police need to prove that they can be trusted with a vulnerable person’s phone data.
Only then can they say that these new forms won’t make some- one who has been raped feel as though they are the guilty party.
Isabel Hardman is assistant editor of The SpectatorRape cases – Met police assistant commissioner Nick Ephgrave on national consent forms enabling detectives to search victim’s texts, images and call data