The real issue with evidence disclosure in rape cases

25 Sep 2018

An exclusive article in The Guardian today (Tuesday 25th September 2018) reveals the vast amount of personal data routinely being demanded of rape complainants and the inconsistencies in evidence disclosure practices across police force areas. 

Victims and survivors are often asked to sign away their Article 8 human rights to privacy with what is known as a Stafford statement, unlike alleged victims of other types of crime, and told there is little chance of their case proceeding if they refuse. 

Rape Crisis England & Wales spokesperson Katie Russell said: 

“The current culture of disclosure is deeply concerning and has the potential to cause real harm. 

The volume of personal data complainants in rape and other sexual offence cases are routinely being required to give access to is vast, and there is currently no clarity whatsoever about how its relevance will be determined, who will see it, or where or how long it will be stored. 

This understandably can and does cause considerable stress and anxiety to victims and survivors of what may have been the most traumatic experience of their lives to date, who are already contending with the widespread impacts of sexual violence on their health, well-being and relationships. 

Through their frontline support work, Rape Crisis Centres have encountered examples of adult victims of recent rape having their school records scrutinised; how can this be deemed relevant or proportionate? In other cases, the time frames for evidence disclosure seem to be chosen at random; how can it be justifiable to trawl a complainant’s entire digital communications for a three-year period, for example, when the issue in question is whether they consented to a specific sexual act on one particular occasion? 

Victims’ and survivors’ reluctance to waive their human right to privacy and grant access to the phones, medical and care records and so on, is not only related to this data’s obvious sensitivity but also their concern for the privacy of their friends and families, which is inevitably invaded by this process. 

The legitimate concern that their private information might be seen by their rapist or attacker can of course cause them great fear for their safety and that of family and friends too. 

But if complainants express their reluctance to part with this data, they are often seen or treated as ‘difficult’ by the criminal justice system, and are usually advised that their case is unlikely to be pursued if they refuse to sign away their rights and hand over their mobile device. By contrast, we know suspects have much more leeway to refuse to disclose their personal data and in some cases that their phones aren’t even requested. 

This glaring disparity in the treatment of complainants and suspects contributes to the impression victims and survivors are all too often left with that it is them and their credibility that is under investigation, in contrast to the apparent lack of scrutiny of the person actually accused of a serious violent crime. 

All this - plus the sheer length of criminal investigations, which routinely take between one and two years and are only likely to become longer with increased pressure on under-resourced agencies - makes it incredibly difficult for victims and survivors to remain in the criminal justice process. We know through experience that the specialist support and advocacy of an Independent Sexual Violence Advocate (ISVA) can help, but chronic under-funding of Rape Crisis and its services means not all victims and survivors have access to them. 

Ultimately, victims and survivors of sexual violence and abuse are being failed by the current criminal justice system and urgent action  is needed.”