My favourite t-shirt is from Alliance For Choice, a not-for-profit organisation that campaigns for abortion rights in Northern Ireland. It’s one of those tops I wear to walk the dog, or to bed, or when I’m working from home. It says #trustwomen on it, and almost every time I catch sight of the lettering, I think of the 28 women a week who leave their homes in NI to access abortion services. 28 women a week who are told that the state knows them better than they know themselves – that the state knows what they’re capable of more than they do. 28 women each week who are not being trusted to know what’s best for their own bodies, their own lives.
See, we still don’t trust women, at all.
The first bit of news I heard on Monday morning was that rape complainants will now be told that if they don’t hand over their mobile phones to assist with evidence-gathering, their cases could fail. And while searching someone’s phone is not wholly unreasonable – the decision has presumably been made to ensure investigations are as thorough as possible – I felt my heart sink a little.
The conviction rate for rape in England and Wales is currently estimated to be 1.7%. And I understand that to prosecute a crime that often comes down to one person’s word against another’s, you have to pursue every possible line of inquiry. But if there’s one thing that these crimes are more known for than their abysmal conviction rates, it’s the way the legal process re-victimises complainants and scrutinises their behaviour with the same rigour it does defendants’. And it is women who suffer most. They are five times more likely than men to be sexually assaulted – see table 8 here; those numbers don’t lie. 85-90% of rape victims know their attacker, and roughly half are attacked by a partner or ex-partner.
It is therefore quite likely that evidence of a sexual relationship with an alleged attacker will be found on a complainant’s phone. But I for one cannot imagine what you’d find on someone’s phone that would prove whether or not consent was given in a sexual encounter, unless it’s actual footage of that encounter. Sending photos and videos is not consent. Explicit messages are not consent. Talking the talk beforehand has no bearing on what happens between two people when they’re in a room together. And if you don’t understand that, you shouldn’t be having sex.
I am not playing down the fact that men’s lives are ruined by false accusations. But they make up less than 1% of all recorded rapes. It sounds flippant but men are literally more likely to be sexually assaulted themselves than to have a false allegation made about them.
In 2016, Ched Evans’s retrial involved the complainant’s sexual history being used as evidence, and Evans was eventually cleared, overturning his 2012 conviction. I wrote about it then, weary and sad, because that simply wasn’t supposed to happen. Section 41 of the Youth Justice and Criminal Evidence Act 1999 put strict limits on how complainants’ previous sexual behaviour could be used by the defence, and there we were, 17 years later, witnessing a high-profile case where a young woman’s previous actions were used to exonerate a man whose behaviour was abhorrent, if not technically criminal.
The important thing then was not that the complainant’s sexual history was included (it was allowed under rare and exceptional circumstances) – no, the important thing was that women across the country suddenly felt even less safe than they were before. If they can do it to her, they can do it to me. We make progress, then a little bit of it is whipped away from us. The news that victims of rape and assault will be under pressure to hand over their phones – and consequently a window into every facet of their lives – is chilling. What matters is not necessarily what will be found on our phones, should the worst happen. What matters is the fear. Fear that will prevent assaults being reported. Fear that will make them think, “maybe I did invite this. Maybe I did deserve this”. Fear that will keep yet more women in silence.
And what if evidence of unrelated but dangerous or illegal activity is found on a complainant’s phone? What then? Surely the main outcome of Monday’s announcement is that already-vulnerable women simply won’t report their rape or assault. Pressuring victims of rape to hand over their digital lives, and telling them their case may not proceed if they don’t, is a small step away from blaming women. Again. Again.
It’s hard not to see this as yet another way in which as a society we do not trust women. From the micro to the macro, the default position is “not taking women’s word for it”. We’re told that catcalls are compliments, really. We’re told to try harder to protect ourselves from assault. We are not believed when we say, “that guy is making me feel weird. Something’s not right”. We fight to have everything from period pain to endometriosis taken seriously by medical professionals. Some of us have to travel hundreds of miles in order to terminate a pregnancy we cannot go through with.
It is possible to believe two things: that a defendant is innocent until they are proven guilty, and that a complainant is telling the truth unless it is proven they are lying. Why, in 2019, is our starting point, our baseline, our very foundation “not believing women”? If we haven’t seen fit to trust women yet, when will we?