Violation... or justice?

Rarely has an issue triggered such raging contention. Now read these compelling – and utterly conflicting – voices on the mobile phone rape controversy and judge for yourselves:

WE ASKED a number of writers and those involved in rape cases — including a victim of rape — whether they agree with the new phones policy.

VIOLATION Megan Clark THe 21-year-old student from Salford was attacked on a night out in July 2016. Her attacker was found guilty of two counts of rape. megan says:

I’M ABSOLUTeLY horrified that a victim of rape might be compelled to hand over her mobile phone. Had I been forced to do so as part of the police investigation, I’m not sure I’d have gone ahead with the case. Like any 19-year-old girl — as I was when my rape happened — my phone reflected my life. A normal life filled with pictures of nights out, drinking with friends, parties. All of which is completely irrelevant in a rape case — they should in no way incriminate the victim.

Unless you have the terrible misfortune of suffering a violent attack, you cannot imagine how horrendous the court process can be.

You have to submit so many personal details and surrender yourself to intense questioning about the events leading up to an awful situation. All this at a time when you’re deeply traumatised and just want to go home and crawl under the covers. Although I was the one who had been badly wronged — a young girl on a night out in the wrong place at the wrong time — in court I felt I was the one being judged. To say it’s incredibly distressing would be a huge understatement.

So the idea of being forced to hand over your phone as well — with all its personal information, details, private messages and photographs — is to me another violation. We all feel possessive about our phones. Rightly so. They’re our private world.

I’m not saying phones don’t have their part to play in a rape case. When I was attacked, a witness who rang the police also filmed the attack on a phone. My attacker was sentenced to six years.

But I fear any move to demand access to a victim’s mobile phone — or say that without this then the case may not be pursued — will be hugely counter-productive. It could deter victims from coming forward and even afford protection for the attacker. It cannot be allowed to happen.

JUSTICE Laura Perrins

Former criminal defence barrister and co-editor of The Conservative Woman. Laura says:

THe law and evidence rules around the offence of rape and other sexual offences have always been contested. Rape is considered rightly to be one of the most serious crimes a woman could suffer. But a woman who makes an allegation of rape is not entitled to a conviction and we also must remember that to be wrongly accused of rape is one of the most terrible things that could happen to a man. We live our lives on our mobiles, so what is the criminal justice system to do when an allegation, especially a serious allegation like rape, is made by one person against another? The result is that in every single criminal trial including sexual offences, the evidence must be tested. These days this will often include evidence from mobile phones.

Mobile phones of those accused of a crime are often seized and the defendant cannot object. And sometimes in order for the defendant to have a fair trial, the police will take and look at the mobile phone of the person who has made the allegation. This does not mean this person is on trial. But it does mean the defendant on trial can have a fair one.

Following an outcry about the new policy, Max Hill, the Director of Public Prosecutions, insists that phones are not being seized by police ‘ as a matter of course’. The Crown Prosecution Service (CPS) does not instruct police to probe devices on ‘a purely speculative basis’ [but] only when reasonable and proportionate.

If this is how the police proceed, namely taking mobile phones only when relevant and not on a speculative basis to discredit an alleged victim of rape then I support the change. This is a sensible and necessary measure that strikes the right balance between the two sides.

VIOLATION Sarah Vine

LeT’S make one thing clear: no one ‘deserves’ to be raped. It doesn’t matter what you wear, how much you’ve had to drink, how silly or flirty you may be, how many previous sexual partners you’ve had; if you don’t want to have sex with someone then they shouldn’t force you to. And if they do, they should face the consequences.

That is why I’m very nervous about this notion that unless alleged victims consent to allowing police to examine their mobile phone data, they risk not having their cases prosecuted. People do and say all kinds of things in the digital sphere that they would not dream of actually doing in real life.

You can argue that this makes them foolish. And I would. But it does not give another person carte blanche to assault them sexually.

That said, I can perfectly understand why the CPS are pursuing this course of action. Far too many so-called date rape cases collapse at

the last moment because the alleged victim has not been entirely candid about the true nature of the circumstances of the incident in question.

There is a difference between sexual assault and ‘ buyer’s remorse’. Many of us have sexual encounters we later regret; that is not a valid reason to accuse someone of retrospective rape.

That this happens is not in doubt: there have been several high-profile cases in recent years of young men whose lives have been ruined because of false allegations, driven by a desire on behalf of the victim to disassociate themselves from the encounter.

This is greatly exacerbated by the fact that victims are afforded anonymity while those accused are not. Given this, and the time and expense involved, I imagine part of the logic is that this new requirement will act as a deterrent to anyone whose accusations are not entirely genuine.

No one who does not have a genuine case to bring will want their most intimate data scrutinised by strangers, however much of a grudge they may bear against the other party.

But it is a pretty blunt instrument. And the fundamental message it sends to women is simple and devastating: whether or not your case deserves to be heard depends on the circumstances of your relationship with the accused — and potentially on your past moral code of behaviour. In other words, the default position is either we don’t believe you — or, even worse, you were asking for it.

JUSTICE Libby Purves

IT’s hard, horribly hard, on women who’ve already suffered a terrible thing and are brave enough to report it. I can see how having to trust a stranger with your passwords would feel like another violation. so for rape victims, this new policy is not a perfect situation or a welcome request, but it was bound to come about as the new digital age matured. Justice and truth depend on evidence, and the accused have rights too.

Of course, the police and courts must handle this kind of material with immense care, security and respect, or answer for it if they don’t: and there isn’t — and never has been — any excuse for using a woman’s general sexual history in court. And yet the police wouldn’t need to access phones if digital devices, which feel so private and personal, weren’t now routinely used for explicit sexual messages and images.

In the few years since texting and sexting began, something new has happened to flirtation and courtship: something unfamiliar and rather horrifying to anyone who grew up before the digital age. It’s understandable in fastmoving, sexually liberated youthful lives (our generation had no way of exchanging raunchy promises, or even sweet declarations of love, while standing miles away in a bus queue), but this is another reminder that smartphone sexiness is never a wise habit.

We need to remind ourselves that sending the most private messages via distant, impersonal servers is always rash. Any device which keeps things on record — texts, sexts, WhatsApps, pictures — has to be treated with care.

‘ see you Monday 7.30, look forward to it’ would be my riskiest text if I were on the romantic market now.

VIOLATION Carol Sarler

My knee-jerk reaction? That the police should obviously have access to the phones.

We know of men who have been saved from incarceration by phone evidence and I heard yesterday of another case where phones proved the ‘ rape’ was a mutually planned fulfilment of the woman’s rape fantasy. And as the saying goes, if you’ve nothing to hide, you’ve nothing to fear.

I heard one woman complain on the radio that this shouldn’t be allowed to happen because women keep all sorts of private things on their phones like, oooh, naked pictures of themselves — and all I could think was, why? Have they no dignity? Don’t they know phones get stolen? And images are then splattered over social media?

Not that I do social media. To the annoyance of friends, not even WhatsApp — owned by Facebook — so concerned am I for my privacy. Which, suddenly, stopped me in my tracks. social media, no. But emails? Of course.

And emails today are what we used to call ‘letters’.

Until recently, I kept all my letters. Boxes of them, spanning a lifetime. so meticulous was I that, pre- laptops, I even wrote my replies with a carbon copy so that I had a complete record. Then, not long ago, I wondered: if I fell under a bus, could I bear the thought of them being read? I could not. Not just for the racy few, but also the ones where I bitched needlessly or told an eeny weeny, uh, fib.

Eventually, this became a proper niggle and there was only one way to get rid of it: I took ALL the letters and destroyed the lot. My daughter was furious; she felt deprived of a living record of my life. But I asked her, ‘If I didn’t want you to read them when I was alive, why might I want you to read them when I’m dead?’ If you do give police phones, they have access to every email you ever

wrote; even the ones you have deleted. And if emails and other digital interactions are the new ‘letters’, how can I take action to protect my own letters — then deny another woman the right to do the same? For me, our right to privacy wins. It must.

VIOLATION Julie Burchill

SADLy, the idea of taking the mobile phones of alleged rape victims seems like a silly gimmick at best and a sinister strong- arm tactic at worst.

Would police take the phones of people alleging racial hate crime to see if they ever used the racial slang so popular among the young when having ‘bantz’ with their mates? Would they take the phones of transgender people alleging misgendering to see if they had ever referred to themselves privately as a different sex?

No, because these crimes must be handled with seriousness and sensitivity rather than the toxic blend of bullying and condescension with which too many policemen treat women in general and rape victims in particular. This is a move almost guaranteed to make women less willing to report rape. Still, that’s one way of boosting the clear-up rate.

JUSTICE Nick Freeman

I’M A criminal defence lawyer who’s represented countless clients accused of rape. Time and again it’s messages or information on social media sites and mobile phones that have undermined the allegation and prevented an innocent man going to jail. In allegations of rape, there often isn’t any physical injury or further corroboration. It’s usually just the complainant’s testimony.

From a legal perspective, it’s a deeply undesirable state of affairs if someone faces a jail sentence on the basis of what somebody has told the police without any independent evidence to back it up. yet, often, that evidence — such as text messages that may suggest the experience was consensual and enjoyable — can be found on electronic devices.

Rape has always hinged on the issue of consent. As it should. No means no. But we’re now living in an age where social media plays a huge part in relationships. It can provide a road map of the relationship — before, during and after. That’s why it’s often of evidential value. A complainant’s credibility is often central to a case.

On one occasion, I defended a personality charged with sexual assault. His accuser had told the court she wasn’t a party animal, that she didn’t drink. But countless photographs and comments she posted on social media repeatedly referred to how drunk she would get herself on nights out.

In other words, the accuser had painted a verbal picture to the police which entirely contradicted the way she appeared on social media. It was highly relevant in determining her credibility. As a result, the defendant was quickly acquitted.

And remember, having access to a complainant’s phone can work the other way too: corroborative evidence on a mobile phone can support their case. The distraught rape victim may have texted or Whats-Apped a friend telling them about an attack. That could help secure a conviction — which the victim would surely want.

yet at the same time a complainant can’t be selective about what evidence to disclose about her case.

Rape is a vile crime and the only person to blame is the rapist. But we need to make sure we convict the guilty and acquit the innocent (or ensure they are not unnecessarily charged).

Without access to mobile phones, there’s every chance the judicial system will not get this right. Do we really want to live in a society like this?