Pursuing justice or preserving privacy?
In the past few months, victims of sexual violence have become increasingly aware that these two objectives are in conflict. New nation-wide consent forms, which authorise police to trawl through the texts, images, videos, and call data from the mobile phones and computers of rape complainants, are being introduced. Victims are also routinely asked to give the police and courts access to their medical and counselling records as well as assessments of their mental health. Dame Vera Baird, the Victims’ Commissioner for England and Wales, has called these practices a ‘digital strip search’.
Of course, complainants are informed that they have a choice: they can refuse to hand over their data.
But that would seriously compromise the likelihood of the police or Crown Prosecution Service (CPS) taking their case forward.
Anything that can help lead to the conviction of perpetrators of sexual violence is a good thing: if electronic communications can corroborate a victim’s account of what happened, then what is there to fear?
In reality, though, the new initiatives mean an all-encompassing scrutiny of complainants’ characters, sexual histories, life-styles, and inter-personal relationships. Victims are on trial. Anything that can be used to discredit their accounts of what happened – even if it is irrelevant to the case (such as a habit of sending sexually-explicit texts to a non-perpetrator partner, a history of depression, or the presence of a sexually-transmitted infection) – is exposed not only to the police, the CPS, and court officials, but also to the accused.
There is more. Text messages and posts on social media often express confusion (‘To be honest, I was drunk and can’t remember all the details’), guilt (‘I wonder: did I do something to make him think I wanted sex?’), and self-doubt (‘I just don’t know anymore’). These normal responses to sexual attack are well known to rape counsellors, survivors, and their family and friends. In the past, though, they were not recorded: victims asked these questions to themselves or discussed them with trusted confidants. Now, however, their struggles to come to terms with the traumatic event is exposed for all to see. They are documented in intimate detail and used as part of the defence strategy.
The pervasive use of texting and other electronic communications has not only fundamentally changed the way people (especially younger ones) express their emotions, but it provides data which can be easily used to convert the normal turmoil experienced by most rape survivors to evidence of a false accusation.
The ‘digital strip search’ has already had serious consequences. Reportage of rape is declining. The need to process the vast amount of digital data has increased the average length of time from the date a person reports being raped to the trial outcome (it is currently 18 months, according to the London Rape Review). In London, only 3% of rape allegations result in a conviction.
These are disturbing trends.