girl holding mobile phone.

New digital consent forms launched for crime victims

Victims of rape are among those requested for their digital data: but there are concerns about wording and use

New ‘consent forms’ for distribution to victims of crime by police forces across England and Wales have been made public. Victims of rape and sexual offenses will be among those receiving the new forms during investigative proceedings.

The forms, which have been updated with the intent of clarifying how and why a complainant’s device and its data will be used in criminal proceedings, have faced fierce public backlash.

The consent forms ask permission to access information including emails, messages, photographs and social profiles.

Though the victim has the right to refuse, the form includes the statement that victims will be given the chance to explain why they don’t want to give the police consent, while also telling the complainant that if they refuse “then it may not be possible for the investigation or prosecution to continue”. This warning, the Victim’s Commission argues, is not indicative of full and free choice.

Katie Russell, spokesperson for Rape Crisis England & Wales said:

“This practice is one we’ve been aware of at Rape Crisis for some time. Rape and sexual assault complainants are often asked to provide access to all the data from their mobile phones and informed that, if they do not, the investigation into the serious crime against them that they’re reported is unlikely to go ahead.”

In addition, the form fails the clarify how relevance of information is determined, or who by. The default blanket approach that may result has been labelled a ‘digital strip search’ in which victims may be subject to scrutiny of personal information unrelated to the incident in question.

Most seriously, there is a concern that unabridged access to personal information about the victim will continue to fuel focus during criminal investigation on the character, history and sexual experiences of the victim – more commonly cited as ‘victim blaming’.

Data among scrutiny may include conversations with friends, browsing history, or photographs.

Responding to the briefing, Rachel Krys, co-director of the End Violence Against Women Coalition, said: “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 investigations too often focus on women’s character, honesty and sexual history, despite rules which are supposed to prevent this, instead of the actions and behaviour of the person accused.

“If the new national consent form that victims will be asked to sign gives the police complete access to a woman’s entire personal records, phones, computers, etc – which may include thousands of personal and private conversations and images – these prejudices and barriers are being reinforced.”

One survivor, speaking anonymously to The Guardian, explained her decision not to go through with investigative proceedings after police requested her phone as part of the process:

“The crime itself was an invasion of my privacy and I didn’t really want to be put through that again, so I decided to try and move on with my life with counselling,” she said.

“There is a lot of information about my past love life and sex life [on my phone] which I don’t think is of any relevance … but I knew the defence would try and use it against me,” she said. “They were the most private details of my life and they were going to be revealed to anyone and everyone involved in the case when all I was trying to do was get justice.”

Rape and sexual assault continue to have among the lowest conviction rates of any reported crimes. In fact, despite a movement towards more women speaking out, the number of suspected rapists being charged is the lowest in a decade. The situation is actually getting worse.

The law consistently fails victims of rape and sexual violence. Conviction rates fell to their lowest in a decade in the close of 2018.

“While this is sadly not a new practice in the investigative process for rape and sexual assault, this latest consent form is likely to deter a number of victims from coming forward to report,” warns TRC representative, Becki Hall.

“These are individuals who have already undergone a traumatic, emotional and deeply invasive experience. Now, we’re essentially saying to these victims: if you want justice then I want access to every personal piece of information about you, otherwise your case won’t be investigated. Knowing this upfront, how many victims will decide that’s a further invasion they’re not willing to endure?

“If our goal is to end violence against women by showing that this is a crime that won’t be tolerated, that perpetrators will receive justice and victims will be supported, this is an abominable step in the wrong direction.”

The police will now face legal action over requests for complainants’ data in light of this.

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