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

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.