Once police asked rape victims what they were wearing. Now they can take their phones and ask what they were tweeting

The mobile phone is about to become the short skirt of the 21st century

Many support groups are aghast at plans to seek access to victim’s phone records and other digital data (Yui Mok/PA Wire)

It is one of the most striking – and unsettling – of crime statistics that 20 per cent of women and 4 per cent of men have experienced some form of sexual assault since the age of 16.

That points to the prevalence of such crimes, even their normalisation – especially at the “lower” end of the seriousness scale. What is just as grim, is that the vast majority of victims don’t then report what has happened to them to the authorities: only around 15 per cent of those who have experienced sexual violence go to the police.

If reporting rates weren’t bleak enough, we must add to the mix the depressingly low numbers of cases that finally reach court. Many reports go no further than the police. But even when they do wend their way to the Crown Prosecution Service, most cases do not result in charges being brought: in the six months to September 2018, the conversion rate was just 37 per cent – down alarmingly from 62 per cent in 2013-14.

Overall, the proportion of rapes that are prosecuted after an initial report to police has fallen to under 2 per cent. It is a shocking indictment.

Given this backdrop, it is no surprise that many support groups are aghast at plans to seek access to victim’s phone records and other digital data, announced today. When individuals report a crime, they expect that the police will investigate suspected perpetrators – not them.

To a certain extent, the new proposal is an attempt to formalise existing practice, and to do so in a way that removes the element of deviation in the way the request is made. There may, given the choice, be merit to creating a standardised approach.

And on the face of it, the desire of police investigators to gain access to potential evidence at an early stage makes obvious sense. That is particularly true in cases which rely on the competing accounts of defendants, victims and witnesses.

The collapse of several rape and serious sexual assault cases has thrown the issue of evidential disclosure into sharp focus, with some trials having been undermined by a failure of police or prosecutors to reveal information that could been helpful to the defence case. It is argued that this is partly a consequence of officers not obtaining (or properly examining) phone and other electronic data early enough in their enquiries – hence today’s development.

Few would argue that full and proper investigation of an alleged crime is the sine qua non of decent detective work. It also seems indisputable that it is far preferable for trials not to collapse because relevant evidence was not made available to both sides – especially where that evidence might change a jury’s mind as to an individual’s guilt or innocence.

However, there remain two key issues which make current practice (and the new plan to standardise it) problematic.

The first is a presentational one. Victims of crime are in an almost intrinsically vulnerable position, especially so if they have experienced violence and violation. Contacting the police is a huge step for many (as shown by those reporting rates); there is a legitimate anxiety that victims will be even less likely to come forward if they feel their private, digital life will immediately be intruded upon – a further violation.

The second concern is that, in cases of rape and sexual assault particularly, the primacy being placed on a person’s online persona is creating yet another reason for juries to justify not guilty verdicts.

Plainly there will be occasions when text interaction, or the swapping of online imagery might be relevant. But rape doesn’t happen in an exchange of messages – however sexually suggestive their content. It happens in actual, physical encounters when penetration takes place even though consent is not given.

The danger is that the prominence afforded to digital disclosure makes a flirty text message the short skirt of the 21^st century. Where once juries placed excessive emphasis on what a victim of sexual assault was wearing (indeed, they arguably still do), now they will read into an online exchange a kind of implicit consent that proves a defendant can’t possibly be guilty. The extraneous thus takes precedence over the key moments.

It goes without saying that police, prosecutors and courts must do all they can to avoid miscarriages of justice. But as things stand, around 100,000 people experience rape, attempted rape or sexual assault by penetration in England and Wales each year: the vast majority of them get no sort of justice whatsoever.