“I feel like I am the one on trial,” Claire* said. “I was forced to download conversations that were irrelevant. It is literally me who is on trial.”
When Claire was sexually assaulted, she did what every woman is told she is supposed to do. She reported the assault to the police.
That was when the second part of her ordeal began. The police took her phone, and started to analyse text messages she had sent. The messages went back years. Conversations with friends, colleagues, exes, even contractors, were all scrutinised as evidence. This is in spite of the fact that other people in the conversations – that is, friends – were not asked for their consent to share this data with the police.
“The process has been horrendous,” Claire said.
Today it was announced that consent forms asking for permission from victims of crime to access information including emails, messages and photographs have been rolled out in England and Wales. Though signing the forms is voluntary, there are concerns that those who don’t agree to hand over access to their private communications could see prosecutions on their behalf fail to go ahead.
Although the consent forms are for all victims of crime, there’s recently been focus on the need for the criminal justice system to access data from rape victims following the collapse of high-profile rape cases after police or prosecutors failed to disclose phone evidence that could have been of use to defendants.
The proposals have come under severe criticism from feminist groups. Harriet Wistrich, of the Centre for Women’s Justice, said the move takes us “back to the bad old days when victims of rape are being treated as suspects”. The End Violence Against Women Coalition issued a statement, calling consent forms “an attempt to make intense scrutiny of victims routine and accepted.”
Demanding women share their phone data could reduce an already low reporting rate for rape and further restrict women’s access to justice. According to EVAW, “we have an extremely serious problem with prosecuting rape in this country, and it is a fact that most rapists get away with it. Part of the reason for this is that investigations too often focus on women’s character, honesty and sexual history.”
They are concerned the introduction of the forms will stoke up the “prejudices and the tendency to make a rape investigation about women’s honesty and history”.
The rollout has reignited debate about how women’s texts and conversations about sex and relationships can be used as evidence to undermine their claims of being assaulted. It risks splitting women into the old virgin/whore dynamic – where women who have flirted, shared sexual stories, and expressed sexual desire or preferences are judged against their history and seen as unrapeable.
It shouldn’t need saying, but women can send flirty text messages with a partner or potential partner that could indicate a desire to have sex – and still be raped. Rape happens when a woman doesn’t consent to sex, and that refusal of consent can happen at any time. It can happen after a woman has shared a sexual fantasy in a text message. It can happen after a woman has told a friend she hopes to have sex with her date later. It can happen after arranging a time and a place to meet. It can even happen during sex. Consent can always be withdrawn at any stage of a sexual encounter. To ignore that is rape.
As feminist writer and activist Joan Smith puts it, “A woman may have joked in a text to a friend about liking a certain type of sex. It says nothing about whether she consented to a specific sexual act weeks or months later.”
One argument put forward for using evidence taken from the phones of an alleged victim of sexual assault is to identify text messages sent after the crime is alleged to have taken place that suggest consent. But this is complicated by how women sometimes cope with the impact of assault in a whole variety of ways, including by trying to placate their alleged attacker, or by trying to reframe the experience to feel less frightening or traumatic.
The increased focus on finding communications that might undermine claims of assault seem to once again ignore the fact that, far from there being a dangerous number of false convictions for rape, tens of thousands of men rape with impunity.
On average, 85,000 women are raped in England and Wales every year. Only 1.7 per cent of reported rapes are being prosecuted in England and Wales – an all-time low.
The damning statistics suggest a consistent failure to support women who report rape – as well as a failure to prosecute rape, and to convict men who commit rape. Tens of thousands of women are raped and never receive justice. Tens of thousands of men rape, and never face justice. These consent forms will do nothing to tackle this problem, and could make things worse.
“All he’s done is say he’s innocent,” Claire said. “It’s me who is on trial.”
*Name has been changed