No wonder so few people report rape. They are hung out to dry in court

Fear of intrusive investigations and total loss of privacy make sexual assault victims less likely to make a complaint

Joan Smith and Claire Waxman

The Guardian, Wednesday 21 Mar 2018

The process of investigating and prosecuting rape cases in England and Wales is in crisis – but not for the reasons you might think. In January, the attorney general, Jeremy Wright QC, asked the crown prosecution service to review all live rape and serious sexual assault cases following the collapse of four high-profile cases in a matter of weeks. In London, the Metropolitan police is carrying out a similar review of 600 current cases.

The nationwide review was announced after a public outcry over the case of the student Liam Allan, whose trial was dropped after three days when evidence from the alleged victim’s mobile phone showed she had asked him for “casual sex”. The Met apologised to Allan, saying that problems with disclosure in the case were caused by a “lack of knowledge”. Wright believes there is a “substantial problem” with the way in which the disclosure protocol is being carried out.

It goes without saying that no one wants innocent men to go to prison. But there is another side to this story, which has hardly been heard because of the focus on defendants. The number of prosecutions for rape and serious sexual assault in this country is low, compared with the number of actual offences: an estimated 510,000 women and 138,000 men experienced a serious sexual assault in the year to March 2017, according to the crime survey for England and Wales.

Five out of six victims did not go to the police, according to the survey, largely because they fear a lengthy and intrusive investigation, followed by the ordeal of giving evidence in court. But police, prosecutors and campaigners say that a strict new interpretation of the rules on disclosure, prompted by a review published last summer, has made that situation much worse.

Complainants now face a complete loss of privacy, having to hand over their mobile phones, tablets and even work computers, containing a mass of personal material such as text messages, photographs and even medical records. Few people realise that even deleted material will be examined, including pictures that may have been taken while the victim was in an abusive relationship. Some of this material is bound to result in challenging cross-examination in court, even though it might have nothing to do with the alleged assault at the heart of the case.

We have already heard of a case where the complainant decided not to go ahead because she didn’t want to be questioned about her history of anorexia, and another in which the alleged victim did not want the fact that she had had an abortion to be discussed in open court. We also know of a case in which a rape victim was asked to take her mobile phone to a meeting at a police station where her Facebook account could be accessed by police and the defence.

Astonishingly, there is no equivalent obligation on defendants to hand over phones and computers in a rape investigation. Detectives have to obtain consent from a superintendent to access even minimal electronic information about a suspect, such as the phone numbers he called just before and after an alleged attack.

Imagine that you are a rape victim. Maybe you once sent drunken texts to a friend about your favourite sexual positions or exchanged nude photos with a previous boyfriend. If it’s on your mobile, the police will look at it. If they think there’s a remote chance that it might be relevant, they will have to show it to prosecutors and disclose it to the defence – and there’s every chance you will be questioned about it in court.

What if the defendant was your boyfriend at the time and you were too frightened of him to go straight to the police? There might be photos of you with him taken after the alleged rape, just as there are pictures of famous women with Harvey Weinstein who would one day – many years later – accuse the producer of sexual assault.

The existence of such photos doesn’t disprove your allegation, but that is how it will be presented in court. The same problem arises in domestic violence cases where delayed reporting – and staying with the defendant – is often treated as undermining the prosecution case.

Experienced police officers are said to be “utterly furious” about having to investigate complainants so much more thoroughly than suspects. They point out the difficulty of interpreting all this material and deciding what might constitute evidence that undermines the prosecution case.

There are other problems caused by the way disclosure is now being handled. With so much material stored on computers – it is estimated that the average smartphone contains data equivalent to around 30,000 A4 pages – police say that the process of examining it could add a year or 18 months to a rape investigation, at a time when inquiries are already taking two years in some parts of the country. [As Victims' Commissioner for London, Claire Waxman is currently investigating the reason for long delays in getting rape cases to court.]

Then there is the impact on a woman’s life of having to hand over a mobile phone for months, if not longer. For most of us, losing access to a phone for so long would be hugely inconvenient, but for victims of domestic and sexual violence it could mean the difference between life and death.

In January this year, the Independent Office for Police Conduct criticised Dorset police following the murder of Katrina O’Hara, 44, by an ex-boyfriend, Stuart Thomas. O’Hara went to the police after Thomas harassed her, and officers took her phone to look for evidence, leaving her “afraid and vulnerable”. She was unable to call for help when Thomas attacked her outside the hairdressing salon where she worked just over a week later, stabbing her to death.

Few of these problems have been acknowledged, let alone addressed, in the furore over the impact of disclosure failures on defendants. Nor is the problem limited to information stored on electronic devices, given that the police are also required to gather material about complainants from a long list of third parties, including healthcare providers, social services, educational establishments and family court proceedings.

But it’s clear that a law that predates the existence of modern methods of storing data is seriously out of date. Politicians urgently need to define what information is relevant, reasonable and proportionate to disclose to the defence; they also need to restore a degree of balance between the defendant’s right to a fair trial under article 6 of the European convention on human rights and the victim’s right (article 8) to a private life.

In the meantime, women’s organisations share the fears of police officers, who believe that the prospect of a massive loss of privacy will deter victims from coming forward. The stark truth is that very few rapists end up in court – and unless something is done to protect complainants, that situation is bound to get worse.

• Joan Smith is Co-chair of the Mayor of London’s Violence Against Women and Girls Board. Claire Waxman is Victims’ Commissioner for London


New Sleuth on the Block

Sunday Times, 18 March 2018

Iceland is famously one of the best places to be a woman, with an enviable record on gender equality. Ragnar Jonasson’s superb new novel, The Darkness, translated by Victoria Cribb (M Joseph £12.99), presents a very different picture. Hulda Hermannsdottir is a hugely experienced detective but her insights aren’t valued by her male colleagues, and she’s being forced into early retirement against her will.

Acutely sensitive to loneliness, Hulda is troubled by the death of a young Russian asylum seeker in an isolated cove on the Reykjanes Peninsula. The woman drowned in salt water and a lazy detective wrote it off as an accident or suicide, but Hulda isn’t so sure. When her boss fobs her off by telling her she can spend her final two weeks on any case she likes, she reopens the file and becomes convinced that Elena was murdered.

Her inquiries create turmoil at police headquarters in Reykjavik, precipitating a chilling sequence of events. This is the first volume in Jonasson’s Hidden Iceland trilogy, which tells Hulda’s story in reverse chronological order and establishes her as one of the great tragic heroines of contemporary detective fiction.

Camilla Lackberg is one of the biggest names in Swedish crime writing, and her new novel, The Girl in the Woods, translated by Tiina Nunnally (HarperCollins £20), is a real blockbuster. Set in the west coast fishing village of Fjallbacka, where Lackberg was born, it brings together a cast of larger-than-life characters including a capricious Hollywood star, traumatised Syrian refugees and an unpleasant bunch of teenagers. The star, Marie Wall, grew up in the village and she has now come back to shoot a biopic about another of its famous residents, the actress Ingrid Bergman.

As teenagers, Marie and another girl were convicted of the murder of a child, based on a confession that was later withdrawn. She has barely arrived when a four-year-old girl goes missing in the same stretch of woodland, reviving traumatic memories from 30 years earlier. The plot is dizzyingly ambitious but Lackberg just about pulls it off, and her point about the long-term effects of domestic violence is well made.

Walter Mosley is best known for his series of crime novels featuring Easy Rawlins, an African-American private detective played by Denzel Washington in the film adaptation of Devil in a Blue Dress. Unlike the Rawlins books, which are set in Los Angeles between the 1940s and 1960s, Mosley’s latest novel takes place on the East Coast in the present day.

Down the River Unto the Sea (Weidenfeld £20) is a suitably biblical title for a novel about revenge and redemption. A disgraced NYPD cop, Joe King Oliver, was thrown out of the force years ago after being wrongly accused of sexual assault. Now working as a private detective, he suddenly gets the chance to clear his name and save the life of a radical black journalist who stands accused of killing two corrupt cops. Mosley’s prose is as fluent as ever but the novel suffers from an accident of timing: a plot involving what used to be called a “honey trap” reads uncomfortably in the era of Time’s Up.

The Devil’s Dice (HQ £12.99) is a fascinating debut by Roz Watkins. A patent attorney is found dead in the Peak District, in a network of caves with a reputation for supernatural goings-on. The cause of death is cyanide poisoning, but DI Meg Dalton has to pick her way through legends about witchcraft and family curses to identify the killer. Watkins brilliantly balances superstition and scepticism in this clever first novel.

Is Theresa May serious about tackling domestic abuse? We’re about to find out

 Daily Telegraph, Friday 9 March 2018

This is Theresa May’s big chance. It might seem a bit early to talk about her legacy, but will she go down in history as the Prime Minister who finally took domestic violence seriously - and did something about it? Many of the signs are promising. This week, May chose International Women’s Day to launch her long-awaited public consultation on domestic abuse. It is wide-ranging, seeking evidence from a range of experts and survivors, and will feed into what is promised to be a flagship domestic abuse bill.

Not just that: in a signal of how seriously the government takes the issue, May was flanked by two Cabinet colleagues, the Home Amber Rudd and the Justice Secretary David Gauke, when she outlined her proposals. For a habitually cautious politician, she made a very significant promise, insisting that her proposals ‘have the potential to completely transform the way we tackle domestic abuse, providing better protection to victims and bringing more perpetrators to justice’.

This is the kind of commitment campaigners have hoped to hear for years. One of May’s most striking proposals is that economic abuse will be recognised for the first time, acknowledging the extent to which some women are forced to surrender control of their finances by dominating partners.

We have known for a long time that victims are being denied access to jobs and transport, kept so short of money that they can’t even leave the house without pleading for cash, and in some cases forced to take out loans. Few people realise that this kind of abuse is actually easier to prove – using evidence such as bank statements – than other forms of coercive control.

May has promised greater protection for victims, including tough new Domestic Violence Protection Orders. These will give the courts powers to place conditions on perpetrators, including compulsory alcohol treatment or programmes to address underlying addictions and abusive behaviour. Breaching an order will become a criminal offence.

She also wants to create a statutory aggravating factor in sentencing, similar to those that already exist for hate crimes, to toughen sentences in cases where domestic abuse affects a child. All of this is good news and consistent with her insistence, going back to when she was first appointed Home Secretary in 2010, that tacking domestic violence is of central importance to her.

Unlike many of her predecessors, May appears to understand that domestic abuse is widespread, encompasses a range of behaviours and causes tremendous damage – to society as a whole as well as individuals. This is not just about physical violence, although that is bad enough for those experiencing it, but relationships that affect every aspect of victims’ lives. Women (and the smaller number of male victims) can’t reach their full potential while they are living in fear, and the impact on children is far-reaching.

At the same time, it is important to recognise that this is not just a matter for the criminal law. New offences and tougher sentences have their place but May needs to answer hard questions before her domestic violence bill is seen as a defining feminist moment in her premiership. Her consultation promises small amounts of public money for specific projects – £2m to support female offenders who have been victims of domestic abuse, for instance – but ducks the big issue of resources. For women in the most dangerous relationships, the most urgent need is a place of safety for themselves and their children – and in many cases that means a refuge.

In the period during which May has been Home Secretary and prime minister, refuge provision has been cut to the bone in this country as a direct result of government policy. Most women’s refuges are funded by local authorities. Savage spending cuts imposed by central government have made them vulnerable – an easy target when cash-strapped councillors are deciding, however reluctantly, where to make savings. The result is desperate women sleeping on friends’ sofas or, in the worst case scenario, staying with a violent man because there is nowhere else to go.

This is happening now, and May is a key member of the governments that created the crisis. Her consultation document says ‘we have heard the need for sustainable funding for refuges’ – and asks for charities and frontlines organisations to come up with ideas on how to deliver it.

They will tell her that what is needed is secure long-term funding, whether it comes from central or local government – and some will ask whether the police will get the resources they need to put new laws into effect.

The government’s proposed domestic violence bill could be a milestone for women,. But the big question is which Theresa May will win out – the feminist or the fiscal conservative?