In A Struggle For Justice: Dignity or Privacy?

Rape assault victims and those who allege sexual assault have to submit their phones to the police or risk having their case delayed or withdrawn. When one files a complaint of sexual abuse, they are often in tremendous stress; they are nervous and scared. The very idea that the police doubt their credibility and their story is often enough for many people not to report their abuse. Many have called this a ‘Digital strip search’, leaving the victim feeling more violated than protected.

The police perform this ‘strip search’, via a consent form which asks the victim’s permission to access their digital footprint. The police have stated that victims could potentially refuse to give their phone by explaining the reason behind the refusal. However, victims are then warned that refusal could then lead to the collapse of the investigation and no prosecution of the crime.

The consent forms were introduced in part to enable the defendant to counter false accusations of sexual abuse, as seen in the collapse of a number of high-profile rape cases. One of the cases where this was seen was that of Mr Liam Allens, who was accused of rape, but, after two years on bail and three days of trial was exonerated after his lawyers were provided with previously confidential text messages which showed the victim’s consent to the sexual activity. This case is often cited when discussing the ‘digital strip search’, as the downloaded mobile phone conversation was vital in establishing the accused’s innocence.

Many campaign groups and the Information Commissioner’s Office (ICO) have launched campaigns and investigations challenging this act, claiming that it violates the data protection and privacy rights of the victims, causes a delay in investigation and is highly discriminatory as it promotes victim violation, humiliation and vilification. Furthermore, they claim that the relevance (language and pictures) of data could potentially be interpreted in various ways. The director of the Centre for Women’s Justice, Harriet Wistrich, has claimed that handing in their whole digital history has been a significant deterrent in reporting rape, which is already one of the lowest prosecuted crimes.

However, the CPS have insisted that the digital data downloaded would not be used unless it was deemed necessary. However, in one case, a 12-year-old victim of sexual abuse was told to submit her digital history, even when the perpetrator admitted to the offence, causing a significant delay in the case. Therefore, one cannot deny that this form has helped create a toxic environment that requires the survivor to be ‘the perfect victim’ and to be scared that their testimony is going to be discredited. Similarly, in one case, a woman’s phone records of calls to an unknown number were used to show that the rape was consensual. The prosecutors implied that due to the time frame between the rape and the calls, she was not profoundly affected; even though she insisted that the calls were to a victim support helpline. Likewise, a victim of rape withdrew her case after the police demanded her digital data, despite her rapist being identified through DNA. Furthermore, one victim renounced her anonymity after her alleged attacker, even after confessing to raping her in a Facebook message, was not prosecuted.

A victim of sexual abuse, Bonny Turner said that she believes that the current system has allowed rape to be decriminalised if even a confession is not enough to get to trial. Therefore, it can be inferred that victims who do consent to the ‘strip-search’ are willing to sacrifice their privacy for the sake of justice. However, being anxious, scared and nervous, they often do so without understanding the implications. This disclosure could lead to stress, feelings of self-blame and lack of a support network due to the loss of their phone in a time of much need.

I believe this form is unethical, abusive, invasive and unfair to the victim of sexual abuse. Considering it is 2019, no individual should be forced to partake in a digital strip search as part of a routine procedure to report sexual abuse. However, considering the number of false rape cases that have been reported, the reasoning behind the consent form is understood. Moreover, everyone should be allowed to practice Article 6: the right to a fair trial, under the Human Rights Act (HRA) 1998. But at the same time the victims should not have to choose between their privacy, their integrity or their need for justice.

Sussex Legal Minds

In A Struggle For Justice: Dignity or Privacy?

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