There's a Difference Between Evidence and a Fishing Expedition

In the U.K.—like in the U.S.—rape is a dramatically underreported crime, and, once reported, few cases go to trial. In 2018, only 1.9 percent of reported rapes in the UK were prosecuted, and a figure that in 2019 fell to a five-year low. So now, police in the United Kingdom have introduced a measure that they believe will improve the likelihood of these cases going to trial: a national consent form, requiring anyone reporting sexual assault hand over all of their text messages, emails, photos, social media accounts, and from their phones, laptops, or smart watches.

Police say it will give them more ammunition to try sexual assault cases once reported. In reality, it’s a terrible idea.

This purview isn’t limited to communication with a suspect, it would enable detectives to access anything they deem “relevant” to the case, which means “anything that has some bearing on any offense under investigation, or on the surrounding circumstances of the case,” according to a final draft of the consent guidelines, published by the Guardian. The open-ended process can last several months, and it can happen at a later point in the investigation, Though the data-hand off is optional, failure to hand over files would effect a policy inquiry about whether or not the case can proceed.

Rape cases are already under-reported because of the stigma, and the new guidelines open up anyone reporting assault to a fishing expedition. Mandating that police get access to the entirety of a rape victim’s mobile data, puts every aspect of a victim’s life—even parts completed unrelated to an assault—under surveillance. In the worst cases, data and social media posts could be used to cast doubt on victims or smear them with sexist attacks. “Most complainants fully understand why disclosure of communications with the defendant is fair and reasonable,” Harriet Wistrich, director of the Center for Women’s Justice, told CNN in a statement. “What is not clear is why their past history (including any past sexual history) should be up for grabs.”

Even without this data, in the U.S., it’s not uncommon for police to interrogate rape victims like suspects. This includes subjecting them to polygraph exams, or threatening arrests for false reporting. Police “may doubt and revictimize victims by closely scrutinizing their lives in search of evidence to charge the victim, without even investigating the rape allegations,” according to a report by the Women’s Law Project and Aequitas: The Prosecutor’s Resource on Violence Against Women.

In 2017, ProPublica and the New York Times reported on the phenomenon of police prioritizing investigations into victims who report a rape over investigating rapists. (In Tennessee, as part of a lawsuit against Memphis, retired police lieutenant Cody Wilkerson said that he heard the head of investigations say, “The first thing we need to do is start locking up more victims for false reporting.”)

Victims already face a series of hurdles when reporting rape, adding another invasive measure to the reporting process is only likely to deter a group who already have little support in place.