The police are now being instructed to ask for access to mobile phones and social media history when processing a claim of rape or sexual assault. This is, obviously enough, so that they can trawl through such records for evidence of how the complainant and the accused interacted – if they did at all – before and or after the alleged offence.
Note that it is not required to hand over such. Only that it will be asked for and used if given. The reason why being there have been some cases where such evidence was exculpatory. Where – a very strong suspicion at least – the allegation seemed to have flowed from an unhappiness with the reaction to consensual sex say. A certain casualness in subsequent treatment perhaps.
This request for such potential evidence is being met with cries of horror:[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]’We should never be the ones on trial – haven’t we suffered enough?’ Rape survivors bring legal challenge against ‘digital strip search’ of victims[/perfectpullquote]
But you are on trial. That’s what the whole process is about.
You’ve made an allegation. One which, if we believe you, will – and righteously should – mean a bloke going away for some years. So, we want to know whether we should believe you. Well, do we?
As it happens we’d all much prefer a world in which we should just agree with whatever it is that you say. But that’s not actually how human beings work. One serious study of the point found that false accusations ran at about 6%. Much the same sort of rate we get from initial allegation through to conviction for rape in fact.
We also have the difficulty of the proof of the crime itself. Sex between humans is not unusual. Rape is less common. The distinction between the two is consent, not something often enough objectively verifiable after the fact. Thus – to take just one sort of problem here – distinguishing between consensual sex and rape is a matter of who do we believe on that issue of consent?
That is, you are actually on trial in such cases. And here’s not really anything that anyone can do about that. Because it is word against word and thus it is the words of either side which are being tried.
Of course, there are the extremists who insist that the allegations must simply be believed and the alleged jugged and that’s that. Fortunately we’ve not yet allowed the nutters to run the asylum. Any other system is going to have to have a consideration of events. And as so much here depends upon who claims what then those claims, and who makes them, are the very thing which is itself upon trial.