By Dr Yvette Russell, Senior Lecturer in Law and Feminist Theory (University of Bristol Law School)
Monday last week saw the announcement of a new national policy requiring criminal complainants to sign consent forms authorising detectives to access data in their mobile phones. Conveyed in a joint briefing by Metropolitan police assistant commissioner Nick Ephgrave and director of public prosecutions (DPP) Max Hill QC, the new policy is designed to ‘ensure all relevant lines of enquiry are followed’ and that any material that undermines the case for the prosecution or assists the case for the accused is detected and disclosed to the defence. While the forms are not to be used solely for sexual offence complainants the use of the forms in these cases was a major focus of Monday’s briefing. While the CPS noted that not all sexual offence complainants will be asked to divulge digital data it is likely, given that most sex crimes occur between parties who are known to each other, that a high proportion of those complaining will be asked to sign a consent form and hand over their phones and the data therein.
Following the robust objections of many rape survivors’ advocacy groups to the new policy, the CPS and police late last week invited victims’ groups to discuss their concerns about the new consent form. Over the weekend, the Association of Police and Crime Commissioners took the unusual step of publicly objecting to the introduction of the consent form, labelling it a risk to public confidence in the criminal justice system.
There is a lot to unpack in this announcement and in the new policy. The policy is almost certainly a response to the revelation last year that 47 rape or sexual offence prosecutions (from a review of cases proceeding during only January and February 2018) were discontinued when it was alleged the CPS had failed to disclose exculpatory evidence, much of it digital, to defence teams. The policy must also be assessed with the most recent Home Office statistics bulletin in mind, which showed that in the year ending December 2018, only 1.7% of recorded rapes had proceeded to prosecution. A cynical reading of this policy announcement might suggest that the DPP and his associates appear to be buffering themselves against criticism of their increasingly risk averse approach to prosecution of sex crimes and in preparation for the next round of what is sure to be more dismal figures of criminal justice outcomes by laying the blame for failed or declined prosecutions elsewhere.
And what of the consent form itself? According to the CPS:
The form makes clear investigators should respect individual rights to privacy and not go beyond reasonable lines of enquiry. They set out what they consider reasonable in the context of the allegation and why. These requests must not be purely speculative.
While this type of reasoning might appear at first glance logical and reassuring, to anyone with any knowledge of the past and present of criminal justice treatment of sexual violence complainants it is alarming. If we have learnt anything from sustained feminist analyses of the use of sexual history evidence in sexual offence trials, recourse to the reasonableness or ‘common sense’ judgement of criminal justice actors is often barely disguised cover for the status quo in which rape myths govern the boundaries of relevance (Conaghan and Russell 2014, 42-43). Another aspect of the form that has barely received a mention in mainstream coverage over the last week is a clause stating that if investigators find any information from a complainant’s device that suggests the commission of a separate criminal offence, other than the one under investigation, the data may be retained, investigated and shared. For vulnerable or precarious complainants who may be engaged in illegal work or have indeterminate immigration status this clause is of particular concern. The entreaties of Hill and Ephgrave for victims to just have ‘trust and confidence’ in the criminal justice system ring particularly hollow given the consistent failure of the bodies they lead to improve outcomes for sexual violence survivors.
While these foregoing points deserve sustained treatment, I am interested here mainly in the language deployed by criminal justice actors and their critics in announcing and responding to the policy and what they can tell us about the treatment and role of sexual violence complainants within the system more generally. Opening their report on the briefing, the Guardian paraphrased Hill and Ephgrave as follows: ‘Victims of rape and serious sexual assault who refuse to give police access to their mobile phone contents could allow suspects to avoid charges, two top officials have said.’ Everyone needs to understand, Hill is quoted as saying, ‘that if they get caught up in a crime, whether as witness or complainant, there may be information on their mobiles that is relevant.’ Complainants have the opportunity to say I don’t wish to hand over their digital data, added Ephgrave, ‘but we also have to make it clear that if that’s the position then it may not be possible for the case to proceed.’
It is hard to avoid the symbolic mirroring of an offence like rape itself in the framing of the issue of giving or withholding consent to disclose digital data by Hill and Ephgrave here. Victims are said to allow suspects to avoid charges; their decision to withhold consent for police to access their personal data causally related to sexual offenders avoiding criminal justice. We see similar causal reasoning in several important rape myths: a victim enables or provokes a rape by being too intoxicated, by dressing salaciously, by flirting, by not saying no enough times etc. So too with Hill’s warning that victims must understand that if they ‘get caught up’ in a crime their data may be relevant to an enquiry. If you are caught up in something, ‘you are involved in it, usually unwillingly.’ To get caught up is ‘to become unexpectedly involved in an unpleasant or annoying situation.’ An example of common usage might be: ‘He got caught up in the demonstrations and got arrested.’ What does it mean to say: ‘She got caught up in a rape’? Though it was unwilling involvement, it was incidental in a sense to everyday life or to the circumstances in which one finds oneself, ‘unexpected’, ‘unpleasant or annoying’. This unconscious trivialising of sexual violence in the language of the DPP is telling, in my view. As I’ve argued elsewhere, the law is almost structurally incapable of comprehending the harm of sexual violence, particularly those that occur between current or former intimates and lack the indicia of what is commonly referred to as ‘real rape’ (Russell 2013).
Ephgrave makes a similar move when he says that complainants ‘have the opportunity’ to decline their consent for police to access their data, but that the consequence of exercising such a choice is that ‘it may not be possible for the case to proceed.’ The implication here is that there is a price to be paid for justice, that price might be measured in the privacy or dignity of a complainant, but that is what access to the system costs. I’m interested in the way that privacy is mobilised here and also picked up by some feminist commentators as the right that is being most egregiously violated by the use of a blanket power to access digital data and the requirement that a complainant agree to the use of this power, or else.
As Lise Gotell notes, sexual violence complainants occupy a liminal position in the criminal justice apparatus between the state and the (presumed innocent) accused. While a complainant’s interests are usually aligned with the state’s they are often expendable, necessarily yielding to the defendant’s right to a ‘fair trial’ (Gotell 2005, 775). The individualised norms of criminal law exacerbate this process in which ‘the recognition of substantive equality and … acknowledge[ment of] the collectivized realties of systemic privilege and dispossession’ is frequently missing (761). Privacy, its emptiness, ‘nothingness and negativity’ when relied on to express the concerns of complainants, will often be subordinated to the rights of the accused, ‘viewed within the traditional framework of criminal law as more compelling and significant’ (752-753).
I argue that we need a much more historically situated and theoretically dexterous understanding of what is occurring within the criminal justice system in sexual offence cases if we are to grasp what is required to resist it. While pragmatic legal solutions to ameliorate the effects of a policy like the one currently under discussion are important, we must place a policy like this within the broader machinery of criminal justice to observe its function. It is common to hear victim/survivors of sexual violence refer to their experience of interacting with the criminal justice system (and in particular, the court process) as being like a ‘second rape.’ In recent work I argue that it is important to try and understand what precisely this means and what contributes to it. I mention this because I think there is continuity between the ‘second rape’ of the courtroom and what amounts to the bullying of complainants to disclose ever-greater levels of personal information to criminal justice actors to earn the chance to have their claims validated.
What does it mean to say that one has been raped by the law, or by the courtroom? Through what conceptual frame can we understand such a claim? I think that question is best understood as one about the nature of Being. Stephen Seely’s reading of Irigaray in conversation with Heidegger on the ontology of modern planetary technicity is instructive here (Seely 2017). In his work concerning the question of technology, Heidegger claims that planetary technicity is the ontology of the modern age. ‘Modern technicity… is identified… by a general ontological comportment in which everything is positioned as inventory in a “standing reserve” that is constantly available for human appropriation and manipulation.’ Under these conditions, Being is reduced to a simple process of the ordering of parts of the standing reserve, and thinking is merely a functional or calculative exercise to determine the most efficacious mode of accumulation (45).
The tekhne of ancient Greece represents the origin of modern technicity, which captured the revealing of Being by human know-how rather than by physis (nature) (45). ‘Technicity is a progressive process of converting everything that is into a product of tekhne, that is, of stripping it of any natural ends or principles so that technics can relate only with themselves’ (47). Regardless of their own intentions or motivations, humans are themselves conscripted into the production line of technicity, ‘which seeks only its own totality’. ‘The planet is nothing but an assemblage of technical possibilities and goals that are ontologically equivalent’ (46).
Because nothing has any value in itself, says Seely, technicity is fundamentally nihilistic: ‘Planetary technicity then is both “biopolitical” and “necropolitical” as it works to denature life and death by converting them into objects of technical-scientific representation, production, management, and administration’ (47). Seely highlights in Irigaray’s dialogue with Heidegger the importance of seeing this process first and foremost as sexuate:
…[I]t begins with the ontological annihilation of birth and the living sexuate body and is, therefore, a death project from the start; it is only on the basis of this ontological annihilation of life – this Being-towards-death – that the global death project of technicity, and that of European Man’s technical domination of the rest of the planet can proceed. …Irigaray understands the project of technicity as a sexuate project that is grounded in the desexuation and devitalisation of the cosmos, which conflates a phallocentric understanding of Being with Being ‘as such’ (48).
I think we can see the global death project of technicity quite clearly through the operation of the criminal justice system as it interacts with sexual violence complainants. In such a system legal processes are productive of a particular nihilistic becoming; a Being-unto-death. This occurs via the rendering of complainants as tools or objects in the service of maintaining the integrity or coherence of the system. Stripped of their lived, or sexuate, being-ness they are converted into standing reserve in the service of the machinery of criminal justice. The complainant here functions primarily as the mirror or the matter upon which the criminal justice apparatus constructs itself (Russell 2016). In a system whose primary goal is its own totality and which seeks the ever more efficient ordering of objects of ontological equivalence it might become easier to understand why the experience of that interaction could be realistically described as like a ‘second rape.’
If we can see policies like the state-sanctioned bullying of complainants to disclose personal data to criminal justice actors to earn the chance to have their claims validated as not an anomaly or aberration in an otherwise functional system with which we share the same goals, but as a component part of a machinery whose primary goal is merely the reproduction of itself we may be able to grasp better the techniques required to resist it. Until that time and always, solidarity with all rape victim/survivors and fuck the patriarchy.
This essay was first published by Critical Legal Thinking on 7 May 2019.
Conaghan, Joanne, and Yvette Russell. 2014. “Rape Myths, Law, and Feminist Research: ‘Myths About Myths’?.” Feminist Legal Studies 22(1): 25-48.
Gotell, Lise. 2006. “When Privacy Is Not Enough: Sexual Assault Complainants, Sexual History Evidence and the Disclosure of Personal Records.” Alberta Law Review 43: 743-778.
Russell, Yvette. 2013. “Thinking Sexual Difference Through the Law of Rape.” Law and Critique 24(3): 255-275.
Russell, Yvette. 2016. “Woman’s Voice/Law’s Logos: The Rape Trial and the Limits of Liberal Reform.” Australian Feminist Law Journal 42(2): 273-296.
Seely, Stephen D. 2017. “Irigaray Between God and the Indians: Sexuate Difference, Decoloniality, and the Politics of Ontology.” Australian Feminist Law Journal 43(1): 41-65.