Sexts Are Still Being Used as Evidence in Rape Trials

Victims of rape and sexual assault are still being asked to hand over their mobile phones for evidence, or risk having their case dropped if they refuse, campaigners have warned, despite an earlier police pledge to abandon controversial “digital strip searches”.

Data consent forms were revoked in September following lengthy legal action from human rights groups. They were replaced by an interim digital protection notice that complainants must sign before downloading their mobile phone. While the notices concede that victims are not obliged to surrender their devices, they list potential consequences of not complying – including a direct threat that it may be “impossible to pursue the investigation”.

But the labyrinthian process of reporting rape or sexual assault is perhaps most evident when you realise that the victims who do agree to unfettered data extractions risk facing their digital material being used to discredit their accounts.

Courtney, who spoke to VICE World News on condition of anonymity, was one of the two claimants in the case which forced the UK police and Crown Prosecution Service to withdraw their controversial consent forms in 2019. She was assaulted in an alleyway off of Old Street in central London, by someone she once considered to be a friend. He had pinned her hands over her head and laughed at how she struggled. “I think this was a person who is sadistic and gets off hurting women. He was laughing at his power over me. Like he found that funny,” Courtney says.

For her, the trauma of the investigation, which lasted over two years before being dropped because she didn’t consent to a wholesale download of her phone, outweighed the trauma of the assault itself.

“At one point, I had to hand over my counselling notes. I can only describe it as torture. It left me having panic attacks. I started drinking. It drove me crazy to feel that this extremely personal information could be seen and potentially be used by my attacker as part of disclosure to re-humiliate me,” Courtney says. “The police on my case told me directly that the CPS ‘are doing this because they want to make it as difficult as possible for you to continue with your case, so you drop out and they look good in their statistics’.”

Following the supposed scrapping of the digital data extraction forms, Courtney went back to the Metropolitan Police, hoping they’d reconsider her case and waive the full download. They proposed a nominally different approach, but remained adamant about using her phone data. “In November, after the ruling on the consent forms, I wrote to the detective liaison asking to reopen my case. They said, ‘we can’t go forward without taking your phone’,” Courtney says.

“Going to the police was a way to take power back,” she continues. “But they put more weight on the imaginary possibility that there was something on my phone to prove I’m lying, versus the actual, real hard evidence that I’m telling the truth.”

Jade Swaby, senior independent sexual violence advocate from the Women and Girls Network in west London, says: “Since September, I have witnessed, and supported women to challenge, what appear to be unlawful requests from the police and CPS for blanket access to, and download of, their digital data and third-party records. As you can imagine this is making victims feel as though they are being treated as the suspect in the case and eroding their faith and trust in the criminal justice system.”

It is understood that the Centre for Women’s Justice has written to the National Police Chiefs’ Council to raise their concerns about current police conduct.

According to campaign groups, seemingly innocuous data obtained from mobile phones has been consistently cited by the CPS as reason to stop pursuing rape or sexual assault cases. This can be anything from flirtatious messages or explicit images exchanged between the complainant and perpetrator; to the victim’s wider digital data, even in instances where the assailant is a complete stranger.

Maria, who spoke to VICE World News on condition of anonymity, met her rapist on Tinder. It happened very quickly, but the memory stretches out for miles. He hauled her by the arm towards the spare-room-turned-recording-studio in his soundproofed flat. She panicked and dug her heels, frantically pleading for him to stop. He’d prepared a bucket if she was sick and told her she wasn’t the first. She remembers the glint of a silver cross hung around his neck.

The timeline, spanning years as rape cases often do, went like this: the very same day Maria went to work, as if operating on autopilot. She visited a sexual health clinic – after the assault, he had told her to get checked out – who referred her to a sexual assault centre, who in turn carried out a forensic examination that evening, which noted she had sustained injuries to her mouth consistent with oral rape. She was prescribed PrEP (pre-exposure prophylaxis) to prevent a HIV infection, but the pills left her in a cloudy, addled state for a month. Later, when she reported the crime to the police, they insisted she hand over screenshots of the prior WhatsApp conversation with her rapist, as well as her Tinder password. It felt intrusive, but she had nothing to hide.

Almost ten months later, the Crown Prosecution Service informed her that they’d dropped her case. Why? Those WhatsApp messages preceding the alleged assault included sexts which, according to the CPS, were indicative of consent. She had the decision reviewed, but the CPS held firm. Their letter to Maria said the “nature and content of the extensive WhatsApp messages between you and the suspect prior to [the incident] undermine the prosecution case… The suggestion from the messages is that you would be a willing participant in this scenario.”

Maria says: “I thought, ‘This must be a mistake. That can’t be right. The law says you can withdraw consent at any time. Why are you looking at this data, anyway?’ Well, I was a bit naïve at the time. It’s dawned on me that I basically gave them information that somehow went against me.”

Kate Ellis, a solicitor for the Centre for Women’s Justice, has cases like Maria’s this time and time again. She recalls a recent case in which the victim’s internet search history of pornographic material was explicitly taken into account by the CPS. “Digital material continues to be frequently used as a reason not to charge complainants of serious sexual assault,” Ellis says. “This really prejudicial evidence about the victim becomes the focus in a way where the victim ends up feeling like they’re on trial.”

Dating apps have reported a surge in activity since the pandemic began. Nudes and sexts have served as currency in an economy of loneliness for some time now, but the government’s response to the pandemic has set singles and non-cohabitating couples adrift and seeking online companionship more than ever. That means that millions of Brits are unwittingly accumulating heaps of gigabytes of data that could easily be used to examine their character and discredit an account of sexual assault.

“I think very few of us would come out of that kind of scrutiny of their mobile phone without there being something that can be used against us,” Ellis says.

With only one in 70 recorded rapes in England and Wales leading to a charge or a summons, the UK is witnessing record low prosecution rates. While reports are on the rise, a mere 15 percent of rape survivors believe they’ll actually receive justice by reporting to the police. In her annual report, Victim’s Commissioner Dame Vera Baird referred to this trend as the “decriminalisation of rape”.

“Decisions by the CPS not to prosecute are devastating. They destroy people’s self-esteem and their ability to cope. They’re denied the victim status,” Baird says. “You have to ask yourself, ‘What is taking a phone about?’ And I’m afraid it’s about myths that women are unreliable, that they will cry rape and you just have to look a little further to find that they were enjoying it the whole time.”

More than 90 percent of women who suffer sexual assault know their attacker, with half of these victims assaulted by a partner, ex-partner or a family member. In these complicated cases where conjecture is rife, digital data is even more damning, according to Rape Crisis spokesperson Katie Russell.

“The CPS uses things like photographs of the alleged perpetrator and the alleged victim looking happy or exchanging ordinary messages after the date of the alleged offence – which is very common in abusive relationships.” Russell says. “That kind of decision making just panders to rape myths and stereotypes because we know the impact of trauma on people’s brains and behaviour is complex.”

But Crown Prosecutor and Deputy National Lead on Rape and Serious Sexual Offences, Siobhan Blake, insists that sometimes mobile phone data can help bolster a prosecution case. “The digital evidence that’s extrapolated from these phones can very much support a prosecution and strengthen a case evidentially,” Blake says.

“We did research into this, and we’re very aware there’s been a massive increase in the number of us who meet our intimate partners online. So, people must be reassured that they shouldn’t hesitate to come forward, because we understand the way a number of demographics within the country operate now.”