Vera Baird QC, the newly appointed victims’ commissioner for England and Wales, has been making headlines for her support of a civil liberties campaign which argues that rape case phone search requests amount to an “illegal digital strip search”. Police and prosecutors have warned that, in some cases, if victims do not allow the contents of their phones to be downloaded, their investigations may be abandoned. Just 1.5% of rape cases lead to a charge or summons.
Today, the London rape review has said more must be done to end the excessive intrusion into personal data through the criminal justice service in rape cases. I reported my own sexual assault to the police with the intention of stopping a dangerous and sadistic predator from ever hurting another woman again. As part of my healing process I needed to take power back, but I ended up feeling more powerless after a two-and-a-half-year investigation that I can only describe as torture. The crown would make requests for deeply personal information, such as counselling notes, with the ultimatum that if I refused they wouldn’t pursue my case any more. This caused panic attacks and crippling anxiety, and my previously successful career began to suffer. Eventually my case was dropped because I refused to give the government access to the entire contents of my mobile phone. Many victims talk about their experiences with the criminal justice system being more traumatic than the assault itself. I share those sentiments because I was left feeling I could be raped with impunity.
The CPS has claimed that they only make such requests for personal information from victims when there is a “reasonable line of inquiry”. Certainly there could be rare situations where a claimant’s phone should be investigated, but it is impossible for the public to really know if a request was legitimate without understanding details of the case. I was told they needed an entire download to see if I was hiding something or if there was anything that would discredit me. I was happy to provide them information relevant to the crime, but did not think a fishing expedition into my phone was reasonable, especially when such personal data could be handed over to my attacker as part of disclosure. When I refused to comply my case was immediately dropped.
More weight was put on hypothetical evidence that I could be lying than on real evidence that I am telling the truth, for example an eyewitness testimony from the night of the assault.
I am not an outlier. I have been told anecdotally by a contact at the Met police that this is being asked of pretty much everyone who is a victim of a sexual crime. This is in direct contradiction to being told that such requests are only made in very few circumstances.
An investigation where a defendant’s freedom is on the line needs to be thorough. In campaigning against these policies I am often asked how I expect to make the legal process equal for victims and defendants. I would love to make it equal. That just 1.5% of rape cases lead to a charge or summons means that the chance of a rapist seeing a day in court, let alone jail, is almost zero (when you factor in how many rapes go unreported).
These statistics are dismal, and yet whenever I try to have a meaningful conversation about the prosecution rate, the handful of cases in which a miscarriage of justice occurred are brought up. The system is not always perfect and mistakes can be made, but it does not mean we should stop prosecuting crime or do away with the right to privacy.
These cases are cited as a cautionary tale of the dangers of the “lying women”, but they are extreme outliers. It is so frustrating to see them hijack 50% of the debate. Sexual abuse is a pervasive problem that is causing a public health and safety crisis. How many rapists will be able to operate with impunity when victims across the country choose privacy over justice, as I did?
I believe that the people responsible for digital consent forms understand this. A detective who investigates rape told me that he does not feel these consent forms are necessary for justice to be served. He told me that such policies have nothing to do with helping the handful of innocent men who get prosecuted every year, rather that the CPS are actively trying to encourage victims to drop their cases so their statistics look better. If a victim does not do everything they request, however intrusive and excessive, then the case can be closed with a clean conscience because the victim did not cooperate fully.
When such behaviour is put in the context of government cuts to the justice system, it begins to make sense. Because of austerity, the Met have had to sell £1bn of assets just to operate, funding to the Ministry of Justice has been slashed by 27% in 10 years and the CPS received 34% less funding in the same period. How do we expect to afford to prosecute rape, especially at a time when so many victims are riding a wave of empowerment as a result of #MeToo? Victims are finally gaining the confidence needed to hold their attackers accountable, yet they are left feeling powerless, not only at the hands of their attackers, but at the hands of a system that is making no meaningful effort to help them.