
England and Wales dropping rape inquiries when victims won’t hand in phones - lostlogin
https://www.theguardian.com/society/2020/jun/17/police-in-england-and-wales-dropping-inquiries-when-victims-refuse-to-hand-in-phones
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torstenvl
This is the right call, once you realize that the article buries the lede -
this only happens when the phone contents are deemed relevant to the
investigation.

If a complaining witness refuses to cooperate in an investigation by handing
over relevant information, it would be inappropriate for the government to
proceed toward a prosecution.

In the United States, there is case law requiring the prosecution to turn over
exculpatory material known to the government. In my jurisdiction, that
specifically includes the existence of relevant exculpatory material held by a
complaining witness.

The fact that the only person capable of providing that evidence refuses to do
so allows the drawing of an adverse inference, which means it's presumptively
exculpatory. Refusal to turn over exculpatory evidence is per se a violation
of the defendant's rights.

Sexual assaults of all kinds are horrific, and we should generally do a better
job investigating and prosecuting them, but not at the expense of basic due
process rights. Everyone deserves a fair trial.

~~~
ThePowerOfFuet
>this only happens when the phone contents are deemed relevant to the
investigation

Perhaps you stopped reading the article part way through?

> Olivia (not her real name) reported being drugged and attacked by strangers.
> Police asked for seven years of phone data, and her case was dropped after
> she refused. “My phone documents many of the most personal moments in my
> life and the thought of strangers combing through it, to try to use it
> against me, makes me feel like I’m being violated once again,” she said.

“This isn’t about trying to stop the police from putting together the facts of
the case. This isn’t about objecting to the police downloading information
from the time that it happened. This is about objecting to the police
downloading seven years of information that pre-dates the event and therefore
has zero relevance.

“I kept trying to ask them if the data that they took could be restricted just
to the period of time of relevance to what actually happened, and they said
no.

“They told me that if I didn’t consent, they may just drop the case and may
not proceed with it. They have now dropped the case citing one of the reasons
being that I have not handed over seven years of my personal life which is of
complete and utter irrelevance to that one night.

“I am willing to hand over the information that is relevant to what happened –
I’m not willing to hand over seven years’ worth of information that is totally
and utterly irrelevant.”

~~~
bleah1000
But how would you enforce only downloading the relevant data? How do you get
only the data you think is relevant before looking at the data? It could be
the police couldn't agree that they wouldn't download more than they need
because they simply do not have the expertise to be able to not download it
all, and then process it afterwards. At the very least, someone would probably
have to look at huge chunks of the data. And depending on how UK courts work,
they may be required to get everything.

In the US, you would probably still have to get it all, but the prosecutor
would likely be able to limit what was turned over to the defense. And if the
defense wanted more, they might be able to get a neutral third-party to look
at the data and decide whether it should be turned over (or the judge might do
this). I don't know if the UK has something similar where the prosecutor can
avoid turning all data over to the defense.

It might be that there is no good way to handle this type of case.

~~~
whack
When I'm victimized and want to press charges against my assailant, I should
only have to provide any and all evidence that I have against the assailant.
The police can then decide whether or not to pursue the case, based on the
strength of the evidence I've provided.

In no sane world should the victim be expected to expose ALL of her private
information. It's the digital equivalent of getting robbed in a dark alley,
and the cops telling you they will drop the case unless you allow them to
search your home.

~~~
torstenvl
So if I go to the police and give a statement to the effect of "whack
assaulted me in an alley!" you're okay with a system where _I_ don't have to
substantiate that complaint any further or hand over my phone (to determine
whether we were on a date, flirting, sexting, or I had sole motive to
fabricate an allegation), but _you_ can be interrogated, your electronic
devices confiscated and searched, your friends and relatives called and
interviewed, all based on an allegation I refused to provide information for?

As a general rule, the proponent of a claim bears the burden of proving it.
This general rule is even more important in the context of criminal
allegations. I don't think there should be an exception just because of the
sexes of the complaining witness and the subject of the complaint.

~~~
whack
> _your electronic devices confiscated and searched_

I don't know where on earth you got that from. The police can and do need to
get a warrant in order to confiscate or search the accused person's devices or
belongings. The warrant needs to explain with probable cause, why those
specific devices/belongings are relevant to the case and need to be searched.
If the cops can't provide probable cause for searching a device, they aren't
allowed to do so.

> _the proponent of a claim bears the burden of proving it_

Hence why I said that it is the accuser's responsibility to provide any and
all relevant evidence. You are going one step further and saying that the
accuser should give up all claims to privacy, in the entirety of their life.
Ie, if I want to press charges against someone for robbing me in a dark alley,
I need to allow the police to search my house. This is a ridiculous way to
structure any criminal justice system.

~~~
torstenvl
> _I don 't know where on earth you got that from... The warrant needs to
> explain with probable cause_

Thank you for the explanation. In my 11 years as an attorney, my experience
has been that warrants are issued freely based on a complaining witness's
statements. Has your experience been different?

> _You are going one step further and saying that the accuser should give up
> all claims to privacy_

I don't believe I claimed that at all. Productive conversation is easier if
both parties fairly characterize one another's positions.

Enjoy the rest of your day.

