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Things were supposed to be different this time, Brooke thought in disbelief as the cop asked her to turn over every piece of data on her phone to investigators – not because she was suspected of a crime, but because she was. was a victim. Years earlier, a man who Brooke until then considered a friend lured her into a London alley, pushed her against a wall, strangled her and violently sexually assaulted her. Her fear and humiliation, more than just invading her body, seemed to be her goal. Several times, she said, she broke free, only for him to grab her, throw her back against the wall and assault her again.
She reported the attack to the police, who initially supported her, she said. But they then closed her case after she refused to submit to a ‘digital strip search’ – UK policy to require victims of sex crimes to give police full access to their phone data. , their social media accounts, school records, and even therapist notes.
“I always assumed before any of this happened to me that assault would have been the most traumatic thing that could happen,” said Brooke, an actress living in London. (The Times does not use her full name because she is a victim of sexual assault.) But in fact, she said, she found the experience of reporting the crime to the police, to be treated as a suspect to be investigated herself, much worse.
Less than 2% of rape cases reported to police in Britain are prosecuted. And the digital strip search is just one of many policies that a recent government report criticized as contributing to the judicial system’s catastrophic failures on rape and sexual assault.
Brooke’s experience is a microcosm of the ways in which efforts to remedy these failures, though fueled by an unprecedented public demand for change in the post- # MeToo era, are doomed to failure unless they do not take into account the societal and institutional conditions that created them in the first place.
And that, according to some experts, may require a radical overhaul of the justice system itself – going so far as to question the role of juries, victims, etc.
There has been some progress in Britain, at least in defining policy. Following an appeals court ruling that police could only collect data under “reasonable lines of inquiry,” the government prosecutor body announced in May that victims of sex crimes would no longer be subject to digital strip searches.
So Brooke requested that her case be reopened – only to be told that despite the rule changes on paper, nothing had changed for her. If she did not hand over her data, they would not follow up on her case.
The fight is not limited to Great Britain. In the United States last week, Bill Cosby’s rape conviction was overturned on procedural grounds. Because Mr Cosby’s prosecution was one of the few cases that had been hailed as a sign that the justice system was finally taking rape and sexual assault seriously, his freedom of movement has left many wondering whether the calculation societal action of #MeToo can translate into real prosecutions and protections.
Kate Ellis, a lawyer at the Center for Women’s Justice, a London legal charity, represented Brooke in her fight to have her case reopened without having to give up her privacy. But she said she was also sympathetic to the bond the police find themselves in now that the digital strip search has officially been withdrawn, but the same incentives that led to its creation in the first place are still present.
The thing to understand, she said, is that police and prosecutors suffer little consequence when they close a case for lack of evidence or because victims stop cooperating. But if they file a case that collapses or fails, they can face serious setbacks.
“So a victim who’s not perfect, or who’s been dishonest before, there’s a feeling of, you know, why pursue the case? ” she said in an interview.
The Crown Prosecution Service has denied having an aversion to risk in deciding which cases to pursue. Parliamentary during testimony in June, Max Hill, the director of public prosecutions, appeared to lay the blame on the police, saying his prosecutors were willing to bring any case where the legal test was met, but too few cases were ever referred for prosecution because “something is wrong at a very early stage.”
But the two are not separate. Police often demand a lot of digital evidence because they believe prosecutors won’t proceed without it.
And the reason for this reluctance, Ms. Ellis found in her work with sexual assault victims, is that police fear blame for failing to disclose evidence.
In Britain, as in the United States, police and prosecutors have a legal obligation to disclose any evidence that may be relevant to the defense. In 2017, a high-profile rape lawsuit against a UK university student collapsed days after the trial began after police admitted they failed to deliver thousands of defense messages that were found on the phone of the alleged victim.
The collapse of the case caused a furore. The Crown Prosecution Service has publicly apologized and announced a review of 600 more cases to ensure similar mistakes are not made.
There is also the larger cultural issue to deal with. It is still common for defense lawyers in sexual assault cases to attack the credibility of victims, claiming that the meeting in question was consensual or never took place. Equally common are efforts to appeal to jurors’ beliefs in ‘rape myths’ – sexist but still widely held beliefs about sexual assault, such as that women often make false allegations of rape, that Rape must fit into a “real” rape stereotype to be believable, or that men cannot control their sexual urges and should not bear the consequences of not doing so.
The rules of evidence theoretically prohibit certain defenses based on the rape myth, such as the introduction of information about the victim’s sexual history. But the restrictions are limited and often ineffective. In practice, research shows that defense lawyers often rely heavily on rape myths to formulate their arguments in front of the jury.
And it works.
“There is so much evidence from fictitious jury studies and other research that juries do not condemn in cases where they should do,” said Fiona Leverick, professor of law at the University of Glasgow who study the myths of rape. “And the main reason is that they believe in rape myths.”
According to Ms Ellis, risk-averse police seem to feel like they are forced to scan victims’ personal histories to look for evidence relevant to anything the accused might raise, including their personal relationships, their sexual history, etc. .
Ubiquitous culture of rape
The problem, in other words, is that changing one part of the faulty system requires changing the other parts of the system that created and perpetuated the problem.
Stopping rape victims from being digitally strip searched means first and foremost attacking police incentives to investigate victims, which in turn requires tackling prosecutors’ risk aversion. when it comes to disclosing to the defense, which in turn requires addressing the role of rape myths in the courtroom, which in turn requires addressing the widespread belief in the myths of rape within society itself.
And while the digital strip search is specific to Britain, every country struggling with the #MeToo legacy faces similar issues. A recent study found that belief in rape myths is also prevalent in the United States, with all the implications that ensue for how it might affect the jury, prosecutors’ decisions, and police investigations under the specific circumstances of the US justice system .
With the release of her end-to-end review of rape, which focused on England and Wales, the UK government has pledged more resources for police and prosecutors, and more training, in an attempt to increase the prosecution rate.
But some experts say the promised changes will be insufficient and are arguing for bigger changes.
The Scottish equivalent of the End-to-End Rape Review, an independent commission headed by Leeona Dorrian, Lord Justice Clerk, recommended that Scotland test abolish juries altogether in rape cases to prevent juror biases and belief in rape myths from affecting the outcome of trials.
“Traditional arguments in favor of juries collide with equally compelling arguments in favor of a trial by a judge alone, which cannot be left unchecked and ignored,” the report concludes.
In the meantime, thousands of rape and sexual assault victims feel powerless to push the system into action. Brooke’s experience with the police left her feeling that “it’s not about if I’m assaulted again, it’s when,” she said.
“There is absolutely no one to help me when this happens. It really scares me. “
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