The practice of investigators demanding access to rape victims’ digital histories has been scrapped – and not a moment too soon, writes contributing women’s editor Moya Crockett.
Imagine we live in a world where modern technology doesn’t exist. Your house has been burgled, so you call the police. Once they arrive, they ask to go through all of your belongings. They want to read every single letter kept in your desk drawer and comb through all the photos tucked away in a shoe box under your bed (yes, even the intimate ones). They want access to the ring binder containing your financial documents from the past several years. They want to see your love notes and riffle through your diary.
No, you say. That stuff’s private. And besides, it hardly seems relevant to the fact that I’ve just been burgled.
In that case, the police officer says, we’ll have to drop our investigation into this alleged crime.
It sounds surreal, but the above scenario is a version of what some rape survivors in the UK have experienced over the last 15 months. In April 2019, the National Police Chiefs’ Council (NPCC) introduced new forms known as ‘digital processing notices’ for use by police in England and Wales. If a rape victim signed one of these forms, they would consent to police extracting an unlimited amount of personal data from their mobile phones, laptops, tablets and other digital devices.
This data could include their private messages and emails, internet search history, photos and videos, notes, call logs, location tracking, financial information and more. Investigators would have the right to lift huge swathes of personal information, potentially stretching back years before the alleged rape even took place.
Digital processing notices were not explicitly targeted at rape and sexual assault complainants, but they were used most often in sexual offence cases. If a survivor declined to consent to one of these “digital strip searches”, that was highly likely to be the end of the criminal investigation. Officers dropped their inquiries in 100% of cases where potential rape victims refused to hand over their phones, according to recent research by campaign group Big Brother Watch, which analysed 390 rape cases handled by police in 2018-19.
Now, police have said they will stop routinely demanding access to rape complainants’ digital data. In a statement, Assistant Chief Constable Tim De Meyer of the NPCC announced that the consent forms were “not sufficient for their intended purpose”. Searches of digital devices “should not be automatic,” De Meyer continued, and in future “will happen only when the investigating officer or prosecutor considers there to be a need to access information to pursue a reasonable line of inquiry.” An interim form will be implemented in August, with a permanent replacement to follow.
This matters, because it puts an end to a practice that has been widely condemned for its potential to deter rape and sexual assault victims from coming forward. Women’s groups and sexual assault charities such as the Centre for Women’s Justice (CWJ) and Rape Crisis have repeatedly expressed concern that digital processing notices could retraumatise survivors and discourage some from reporting their assault at all. In the words of Olivia*, one of two women who mounted a legal challenge against the use of the forms last year with the support of the CWJ: “My phone documents many of the most personal moments in my life and the thought of strangers combing through it, to try to use it against me, [made] me feel like [I was] being violated once again.”
Olivia’s sense that the contents of her phone would be ‘used against her’ is important. There is a long history in the UK – and around the world – of rape and sexual assault survivors being disbelieved by default, and a wildly inaccurate but widespread assumption that it’s common for women in particular to lie about being raped.
In fact, government research suggests that only 4% of cases of sexual violence reported to UK police are found or suspected to be false, and even these figures may be inflated. But by requiring rape victims to hand over unrestricted swathes of deeply personal information, much of it irrelevant to the crime they had reported, police were inadvertently sending a message: we’re not just investigating the person you say attacked you; we’re investigating you, too.
Of course, there are cases where a person’s WhatsApp messages, photos, GPS or other digital data could be instrumental in the outcome of a criminal investigation. These changes won’t block police from ever requesting access to a complainant’s devices. But they will mean that searches of phones, laptops and tablets are no longer treated as an essential, one-size-fits-all procedure.
This June, a major report by an independent government watchdog concluded that police data extraction methods “appeared excessive in many cases”, and a subsequent judgment in the Court of Appeal ruled that investigators should never review a witness’s digital data “without good cause”. Both the report and the court judgment contributed to the NPCC’s decision to scrap consent forms.
Rape charges, prosecutions and convictions are currently at their lowest levels in more than a decade in England and Wales. The most recent figures from the Crown Prosecution Service (CPS) show that while the number of rape offences reported to police has risen by about 65% over the last five years, the proportion that even made it to court during that time – let alone resulted in a conviction – more than halved. The situation is so dire that victims’ commissioner Dame Vera Baird QC has warned that we are witnessing the effective “decriminalisation of rape” in England and Wales.
Against this backdrop, there can be no tolerance for practices that so patently work against the interests of rape and sexual assault survivors. We should all be relieved that consent forms have been scrapped – and watch closely to see what they’re replaced by.
If you or anyone you know needs help and support, you can call the Rape Crisis national helpline on 0808 802 9999 (open 12-2.30pm and 7-9.30pm daily). You can also find your nearest centre here or visit the website for more information
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