As someone who has supported and advocated for survivors of sexual abuse within the criminal justice system for more than 10 years, I have witnessed how victims of rape and sexual abuse have become subject to “digital strip searches”. Since the collapse of a small number of high-profile rape trials due to failures in disclosure of digital evidence, it has become routine for the police to require victims to grant them access to their mobile phone and other digital data in order to take the case forward.

My job as an independent sexual violence adviser is to provide support and guidance to anyone reporting rape or sexual abuse as they make their way through the criminal justice system. In the last couple of years, we have witnessed a very worrying escalation in digital disclosure requests by the police.

Victims are being told to hand over their digital data well in advance of the case reaching a prosecuting lawyer for a charging decision, with huge implications for their personal privacy. Digital disclosure seems to have become a standard request, applied disproportionately. It is fundamentally problematic to suggest that all of a victim’s digital communication will be “relevant” in all sexual violence investigations – for example, in cases in which the accused has admitted the offence, or the accused was unknown to the victim prior to the assault. Furthermore, police forces are interpreting “relevance” differently in different parts of the country, resulting in a postcode lottery.

There are significant problems in the way in which police officers are explaining digital disclosure and asking for access to victims’ data. Victims are for the most part unaware they have a choice about whether to disclose their personal information. Too often they are simply expected to sign a consent form providing unlimited, unregulated data extraction for unspecified amounts of time, without fully understanding the implications of what that might mean for them.

Victims are often given the impression, or told directly, that if they do not surrender their personal records, the police may be unable to take the case forward. This is completely unethical and cannot elicit free, informed consent. The sickening irony of the criminal justice system failing to seek proper consent from survivors of rape is not lost on specialist sexual violence and abuse workers such as myself.

Victims who have no secure immigration status or whose first language is not English are even more vulnerable and less likely to understand the implications of granting access to their personal data. For them, the navigation of the complex criminal justice system becomes even more overwhelming and confusing.

Although, when presented with this choice, many victims are willing to sacrifice their privacy in pursuit of justice, this does not make the fact that they face this choice in the first place any less abusive, invasive and unacceptable. I see victims feeling incredibly confused, fearful, angry, anxious and unfairly treated. They question why it feels as if they themselves are being investigated. The stress often exacerbates mental health conditions such as depression and anxiety, and victims feel a profound sense of self-blame. A victim’s mobile phone can end up being seized for an unspecified length of time – just when they are likely to most need it to access support.

Digital disclosure and extraction have been likened to a digital strip search for victims, or a fishing expedition into the lives of victims for the purpose of character assassination. I have seen how that extracted information gets misconstrued. Behaviours that might be considered otherwise quite normal – such as the use of alcohol and recreational drugs, being active on a dating app, or watching pornography – are seemingly all enough to result in a case being dropped by the police or prosecutors, or being used as a “legitimate line of defence” during a trial.

Digital disclosure has helped create a context where survivors of sexual violence and abuse are required to be the “perfect victim”, or risk having their testimonies and traumas discredited and belittled by professionals working in the criminal justice system. Defence barristers now no longer need to display a victim’s underwear or clothing in court in order to insinuate that the victim was “asking for it” or was in some way to blame. Instead, they can deploy the text messages and online activity revealed through the inappropriate use of digital extraction and disclosure. This is resulting in victim violation, vilification and humiliation.

The criminal justice system is unequipped and under-resourced to deal with the volume of data-extraction requests. But what is most alarming is the blanket acceptance of this abusive practice, which is being allowed to continue because of prosecutors’ fear of another high-profile collapse of a case. This means all current and future victims of sexual abuse now unfairly shoulder the repercussions, and suffer disproportionate and unregulated extraction of the most personal kinds of information. The very system that was set up to protect sexual violence victims is now enabling their violation and humiliation via digital extraction while simultaneously reinforcing the myth that victims, who are overwhelmingly women and girls, are deviant and lie about rape.

In 2019 no victim of rape or sexual abuse should be forced to undergo a digital strip search as a matter of routine procedure. Nor should any victim of rape or sexual abuse be compelled to make a choice between privacy and dignity, or bringing their assailant to justice.

The author is an independent sexual violence adviser in England

Source