Rape victims are being asked to surrender their phones to police
The way in which crimes are dealt with by authorities has a huge effect on how, and whether, they are reported. A key example of this was the #MeToo campaign - a global movement where victims of rape, harassment and sexual abuse stepped forward. For many people, this was the first time they felt they would be taken seriously and given the support they needed.
However, those critical of the justice system believe there is still a degree of victim-blaming and the news that rape victims are being asked to hand over their phones to police is bringing this issue into sharp focus.
The request for the phones of victims of crime comes via a consent form which is currently in use in England and Wales. It asks for permission to access emails, messages and photographs. The form routes around a law which states that victims and witnesses cannot be forced to provide data from their devices.
Civil liberties charity Big Brother Watch said victims were being made to "choose between their privacy and justice" adding, "the CPS [Crown Prosecution Service] is insisting on digital strip-searches of victims that are unnecessary and violate their rights".
However, the authorities hold that this process is necessary. "There are roughly 60 million mobile devices in the UK, with a population of 66 million," digital forensics expert Alex Milford [name changed] told VT. "We store so much information on our mobile devices that it is a go-to source for investigations in nearly every case. We keep the most intimate of personal details on our phones, we do our banking, we work and access email, we use dating apps, we shop. There is so much for an investigator to use."
"Some of the most important and ground-breaking evidence on a mobile device is information that is recorded without the user's knowledge," Milford explains. "Take for example the increased prevalence of Fitbits and Apple Watches which record the wearer's heart rate and location. This data has been used by investigators to prove or disprove facts in many investigations and that trend is looking to increase."
"When a victim's handset is examined," he adds, "the device owner has more of a say about what is looked at. Let's say there were messages on WhatsApp around the suspected crime, then the victim can choose to have just this examined. If the investigator is worth their salt then they won't go snooping around if they don't have to - especially if the device belongs to a victim. It all depends on the integrity of the examiner."
However, the experiences of some victims point to a distinct lack of compassion. "I was willing to give the police everything they needed,” explains an anonymous victim to the BBC. Like most victims of rape, she knew her attacker. “I'd texted people that night about the incident. The police said they wanted to extract data from my phone.”
"I was required to hand in my phone and it was only returned to me after repeated requests after two years,” she adds. "When I got my phone back, I saw that it had not even been turned on in two years.” Had the case been a success, this might have just been annoying. However, having spent two months plucking up the courage to report the crime, nothing came of it: “They didn't even take the phone off the perpetrator. I gave his name and address. He's not had to face any consequences."
Another common theme here is not immediately reporting the crime. "I didn't have the courage to report it straight away - but when I saw him again on campus, I had to,” explains Leah, who was a university student when she was sexually assaulted on campus.
Leah was told that she would need to be interviewed - and to hand over her phone. "I didn't think it was relevant,” she explains. "When I turned up at the interview and didn't hand over the phone, I was made to feel that I'd done something wrong. It felt so invasive.”
In some cases, it may be how the process is handled that causes anguish to victims rather than the process itself. "In recent times," Alex Milford says, "police cuts have meant that police officers, not trained forensic technicians, carry out the examinations. They are known for being slightly 'heavy-handed' with investigations and perhaps look at more than they should." He adds: "I personally wouldn’t worry about the invasion of privacy aspect, but I can see where people are coming from."
On the subject of whether or not this could prevent victims of crimes like rape from coming forward, he is more pensive: "This is an interesting point. I think one of the key points is whether or not the person knew the defendant or not. If they did, then there will obviously be a wealth of evidence on the device that could be used. I think that if you had been a victim of rape, and knew that there was evidence on your phone that could convict your attacker, then it seems a no-brainer to have your device looked at."
"If the victim didn't know the person before the alleged attack," he adds, "then it could be evidence like I mentioned earlier (recorded without the user's knowledge) that could prove or disprove facts. This could be less preferable to the victim as there would need to be a higher level of 'digging' to get to the bottom of the case and establish the facts."
One fact, it seems, is unavoidably true. Adding to the anxiety around the incident itself, surrendering one’s phone can serve to compound the stress of the situation. "I got halfway through the interview and then stopped,” Leah adds. “It was almost as traumatic as the incident itself."
However, a lot of cases fall apart when crucial evidence emerges - hence the purported need for complainants’ phones. "I wouldn't relish that myself" admits Metropolitan Police Assistant Commissioner Nicholas Ephgrave, adding that it is an inconvenience for victims.
Like many in the police force, Ephgrave believes it is necessary and that it is executed with “the minimum of disruption and irritation and embarrassment to the person whose phone it is that we're dealing with."
Others, however, are more critical. "We seem to be going back to the bad old days when victims of rape are being treated as suspects," stated Harriet Wistrich, director of the Centre for Women's Justice. She believes that police are justified in requesting to see communications between the victim and the defendant but doesn’t understand why their sexual history is relevant.
"Another thing to consider," Milford adds, "is whether or not the victim has information on their device that could cast them in a bad light and possibly be used against them. This is the only logical reason I could think of in which somebody wouldn't want to hand over their device, whether it be related to the case or not. Let's say you get up to stuff on the weekend that could put you in a bad light, or you generally just don't want people knowing, then it’s worth speaking to a lawyer about the admissibility of that information and how it could potentially impact your case."
Ultimately, the law stating that victims and witnesses cannot be forced to provide content from their devices still stands. However, authorities are warning complainants that they have a better chance of success in court when all relevant information is handed over. Nonetheless, a more compassionate approach must be adopted by the police to ensure that these crimes are reported, and that the consequent investigations aren’t abandoned.