Women who report rape and sexual assault will be forced to hand their phones to police or risk their charges being dropped, it was announced today. Victims of all crimes in England and Wales can be asked to sign digital consent forms giving police access to their text messages, photos, call data and emails, but they are used most often in cases of rape and sexual assault where the complainant and suspect know each other, the BBC reported.
Police and prosecutors say the move is a response to the collapse of several rape and serious sexual assault cases after crucial evidence emerged late. "If you refuse permission for the police to investigate, or for the prosecution to disclose material which would enable the defendant to have a fair trial then it may not be possible for the investigation or prosecution to continue," the consent form states.
But rape charities, survivors and organisations campaigning on behalf of survivors are outraged, claiming the consent form perpetuates a victim blaming narrative and that it could re-traumatise victims and discourage others from coming forward.
A legal challenge to the controversial move is already underway, the Centre for Women's Justice (CWJ) said, with a claim expected to be brought by at least two women who were told their cases could fall apart if they refused to hand over their data. The charity said it had "serious concerns about excessive disclosure requests" and described the consent forms as "unlawful".
Harriet Wistrich, the organisation's director, said that while "most complainants fully understand why disclosure of communications with the defendant is fair and reasonable," it was not evident "why their past history (including any past sexual history) should be up for grabs. We seem to be going back to the bad old days when victims of rape are being treated as suspects."
Treating rape victims like suspects in this way ... prolongs distress for both victims and suspects.
Griff Ferris, Big Brother Watch
Civil liberties charity Big Brother Watch dubbed the forms "digital strip searches" and said victims should not be forced to forgo their right to privacy to achieve justice. Griff Ferris, the charity's legal and policy officer, flagged the fact that phone and social media data about victims’ private lives is often "irrelevant" and "predate[s] the reported crime by years". He added: "Some forces are even scouring victims' devices with artificial intelligence tools that are an invasive, experimental and wholly inappropriate replacement for police investigative work.
"Treating rape victims like suspects in this way delays investigations and trials, prolongs distress for both victims and suspects, deters victims from reporting and obstructs justice. Urgent reform is needed so victims no longer have to sacrifice their private lives to bring criminals to justice."
Baroness Newlove, the Victims' Commissioner for England and Wales, was also clear in her objection to the move, arguing that it would "re-traumatise" victims of sexual violence, "potentially [infringe] their right to privacy" and deter people from reporting rape at all. Katie Russell, spokesperson for Rape Crisis England & Wales, said the charity had been aware of the issue "for some time" and that it had long questioned its relevance.
Suspects are not being subjected to the same level of scrutiny. In some cases, suspects' phones aren't even requested.
Katie Russell, Rape Crisis England & Wales
"No clarity has been provided as to how the relevance of evidence is determined or by whom, so that in practice a blanket approach appears to be being taken to scrutinising a victim or survivor’s personal data, including photos, messages and calls, regardless of whether or not it has any connection to the alleged crime or the alleged perpetrator."
It is also "problematic" to refer to it as a "consent form", she continued, given that "complainants don’t have a full and free choice as to whether to agree to the scrutiny and storage of their personal data." The charity also had reason to believe that "suspects are not being subjected to the same level of scrutiny. In some cases, suspects’ phones aren’t even requested."
Prosecutions for rape and sexual assault are already notoriously low in England, Wales and the rest of the UK, and such crimes are under-reported compared to others, often due to victims' fears that they will be painted as a suspect or that they won't be believed. One in seven (14%) women in the UK has experienced some form of sexual violence, according to Amnesty International; meanwhile the number of rape cases charged in 2017-2018 dropped by 23%, according to the Crown Prosecution Service's annual report.
Russell added: "When criminal justice outcomes for victims and survivors of child sexual abuse, rape and all forms of sexual violence are so woefully low, a practice that can feel so invasive, punitive and off-putting to survivors seems counterintuitive."
The End Violence Against Women Coalition (EVAW) explained the low prosecution rate for rape cases: "Part of the reason for this is that investigations too often focus on women's character, honesty and sexual history, despite rules which are supposed to prevent this, instead of the actions and behaviour of the person accused." If suspects aren't being given the same level of digital scrutiny, as Rape Crisis implies, the ongoing victim blaming is not going to be rectified.
Winnie M Li, 40, an author, activist and researcher based in London, was sexually assaulted while hiking on her own during a trip to Belfast in 2008. Her case went to trial the following year. Li's book, Dark Chapter is a fictional retelling of her rape and covers the criminal justice process from a victim's perspective. Ahead, she shares her verdict on digital consent forms with Refinery29.
I was followed by a 15-year-old stranger, who violently assaulted and raped me, leaving me with 39 separate injuries. I reported it to the police right away, and he was arrested five days later. I went through the entire criminal justice process, up to trial in Belfast, and on the morning of the trial, he pleaded guilty.
Requiring a rape victim to give up [their] phone is incredibly invasive and disruptive. It really does not take into consideration what a victim is going through at the time. After my trauma, I was very emotionally fragile, isolated, and needed the support of friends and family. To take away a victim's means of communication and her link to the outside world is disrespectful and damaging.
It would have had a huge impact on me emotionally to have to give up my phone. I had severe post-traumatic stress disorder (PTSD) at the time. I found it difficult to leave my flat because of agoraphobia and I was getting flashbacks all the time. I already felt like it was impossible for me to function in the world. My phone was my only means of communication with the outside world, and a vital means of support from friends and family.
If I was told I had to give up my phone in order for justice to proceed, I probably would have complied. (Though I can imagine and understand why many other rape victims wouldn’t want to.) But it would have worsened my feelings of isolation, loneliness and depression.
It may also scare off many victims from reporting and deciding to go through with the criminal justice process – which is the opposite of what we want, if the aim is for justice to be delivered. It is only really fair if the accused is also required to give up his phone, and if the victim is told this will also be happening to the accused.
The evidence on the phone may not be crucial to the case anyway. Often, rape victims don’t realise they’ve been raped for days, weeks or even years after the trauma – for example, in the case of someone being drugged. In the meantime, there may have been friendly text messages between the victim and perpetrator, which will then be unfairly used as evidence against the victim by the defence. It is hard to establish whether or not consent has been respected simply by reading a trail of text messages.
If you have experienced sexual violence of any kind, please visit Rape Crisis or call 0808 802 9999.