This article takes a background look at a recent case where evidence from
gleaned from Facebook. Our current legislation relating to rape and the wider
elements of consent is less than twenty years old. The Sexual Offences Act 2003
(SOA) shored up a series of statutes that the then Home Secretary, David
Blunkett described as belonging “to an age before the light bulb or the car.”
(Telegraph 2002).
The SOA started out as a series of consultations over a three-year period. It
had a remit of modernisation of the laws around sexual offences reflecting
changes in twenty-first-century society and societal attitudes. Clarification
around the issue of consent to sexual intercourse was pivotal to the reforms and
it was hoped this should lead to an improvement in the conviction of rape
offences. One of the motivations for the reforms that led to the SOA was a need
to give a succinct definition and to clarify the concept of consent in relation
to adults and vulnerable people. Most victims of rape hitherto knew their
attacker in some sense and the issue of consent was often a decisive factor in a
trial (Kyd et al., 2017 p.923).
The new law defined consent as “if he agrees by choice, and has the freedom and capacity to make that choice.” (SOA s74). This is crucial; It clarifies that there is no need for positive dissent (a stern no) or requirement for a victim to fight back. The onus of deciding if consent took place is very much a task for the jury. Home Office Minister, Hilary Benn said: “It is not about having a pen and paper by the bed, it’s about asking the jury to think about this question.” (Telegraph 2002).
On paper, the defendant needs to prove that there was consent or that he
reasonably believed that the victim consented. The reality is somewhat
different, and the victim’s ordeal stands much more chance of being seen as
credible if they fought their attacker, sustaining bruises or injury and thereby
putting themselves in mortal danger (Kyd et al., 2017 p. 923).
In the absence of those bruises and fight marks or immediate distress, a case
may well not make it to the evidence gathering stage of a prosecution. Though,
in constructing a case the police will gather relevant evidence. Some of the
evidence will be scientific, such as DNA results and bodily fluids. Although
with the passage of time organic material may not be available. They can check
CCTV, take witness statements relating to the time before and after an attack
and look at electronic records (CPS 2012).
R v DSK [2017] EWCA Crim 2214 is a case where corroborating evidence in the form
of Facebook Instant Messages (FBIM) helped secure a rape conviction and later
resulted in the same conviction being overturned on appeal.
DSK was a twenty-year-old man at the time who sent victim A a friend request on
the social media site Facebook on 1st February 2012. The two messaged each other
on FBIM and between themselves also sent 839 SMS messages to each other between
1st and 17th February 2012. The pair met twice, once where they sat and chatted
in DSK’s car and the second time at DSK’s house where victim A alleged that DSK
raped her.
Contact between the two stopped abruptly after the incident. DSK maintaining
that he contacted victim A after the incident and her telling him she enjoyed
herself. Victim A says that DSK had contacted her and she ignored him.
Contact was re-established briefly on 13th March 2012, between the pair when
victim A believed that she might be pregnant. DSK advised her to find emergency
contraception. One SMS from victim A said, “I can’t believe you did that.” FBIM
were vital to the prosecution. Victim A said that she had deleted some of the
messages on her phone to free up storage but that all the other messages stayed
on her computer.
DSK was found guilty of rape and after discovering that his Facebook account
held a cache of FBIM he appealed his conviction in two parts. Firstly, on the
grounds that the judge had instructed the jury to only one party was telling the
truth. The appeal argued that this effectively withheld DSK’s defence that he
had a ‘mistake but reasonable belief in consent’ which should have been an
opinion the jury could consider.
Secondly, the appeal introduced previously unseen evidence. Victim A had deleted
29 FBIM messages but these still remained in an archive on DSK’s Facebook
account. In a subsequent interview Victim A denied deleting the FBIM messages
and the Officer in Charge of the case was sure that no FBIM had be left out as
sworn in as evidence. Indeed, he had been told by a computer technologist that
FBIM could not be deleted beyond recovery.
Sent between February and March 2012 the 29 FBIM messages had been deleted
selectively. They had created a false record of the conversations between Victim
A and DSK. Victim A’s account of the cessation of communication between the two
is vindicated. The FBIM messages start up again when Victim A become concerned
about being pregnant. DSK asked Victim A for her phone number. During the trial
messages sent on 21st and 23rd, March 2012 were used to provide a narrative that
DSK felt sorry for having raped Victim A. With the added missing FBIM messages
they show an innocuous conversation about being sorry for not being in touch.
The Court of Appeal noted the high value the jury placed on the doctored
evidence, saying “The exhibit of
the edited Facebook entries was of obvious significance in a case of one
person’s word against another, and indeed, during their deliberations, the jury
requested a colour copy.” (DSK para. 29).
Considering the trial judge’s directions, The Court of Appeal noted that the
judge had failed to differentiate the different actors in a rape case like this
setting the bar too low for a satisfactory conclusion and secondly that the
judge removed an issue from the jury, that of proof of no reasonable belief in
consent (DSK para. 32 & 33). They also expressed concern that no written
directions were given to the jury. A route to verdict explaining in a logical
fashion the possible verdicts would have assisted the jury when going through
the evidence (DSK para. 34). DSK had his conviction quashed.
The statistics relating to rape show a depressing picture. Only 5 to 25% of rape
offences are reported. Of those 50 to 75% will be lost at the evidence gathering
stage. Adult rape cases that depart from ‘real rape’ scenarios are more likely
to fail than proceed (Kelly and Lovett 2009 cited by Kyd et al., 2017 p. 914).
Conviction rates for completed Crown Court trials are getting better, in 2011 it
was 61.6%. 51.1% for those involving a female rape victim, an increase in 9.9%
since 2005 (Kyd et al., 2017 p.914).
Rape laws that focus on consent are a step in the right direction. The United
Kingdom is one of only eight European countries that have amended age-old laws
that do not recognise that without consent sex is rape (Amnesty 2018). However,
there is much improvement to be done to improve the rates of conviction and on
the other side of the coin approaches to proving absence of consent need to
provide full disclosure to the defence.
In terms of evidence extracted from social media and SMS message logs, it is
important that full disclosure is offered to the defence team. In the recent
rape case concerning the student Liam Allen,
the CPS had failed to check through messages that would cast a different
light on the case, in which the complainant had written to a friend “It was not
against my will or anything.” (Guardian 2018a). Likewise, as in the DSK case, it
must be explained to the jury that where there are omissions in the message
record or where a master copy is unavailable not to rely on it as crucial
evidence.
R v Hysa [2007] EWCA Crim 2056 explained that capacity to consent is for the
jury to find (Open University 2018 1.3.1). In DSK, The Court of Appeal noted
that the jury was not provided with written instructions regarding the elements
of the offence. The Criminal Practice Directions 26K.12 Written route to verdict
provides clear instructions, “Save where the case is so straightforward that it
would be superfluous to do so, the judge should provide a written route to
verdict. It may be presented (on paper or digitally) in the form of text, bullet
points, a flowchart or other graphic.” (CPD 2019). It seems only right that
juries should be provided with clarity to help with reaching a verdict.
Juries could be prepared for rape trials in advance. One of the proposals that
met strong opposition in Baroness Stern’s review of rape complaints (Stern cited
by Kyd et al., 2017 p.915) was that experts could address the court on the
general impact of rape crime upon a victim including debunking myths like
victims always resist or real
victims don’t delay reporting rape. This could be done outside of court as an
accredited programme (Guardian 2018b) or in a pre-recorded format (Woman’s Hour
2015 cited by Open University 2018). As long as the information is measured and
free of bias and not too emotive, it can help juries reach a verdict that
dispels myths they may have had before they entered the courtroom.
Stockport MP, Ann Coffey recently called for the end of juries in the trials of
young men accused of rape. According to a freedom of information request, young
men aged 18 to 24 account for more than 25% of rape only cases in the last five
years to 2017-18. Of that age group, less than 33% result in a conviction. The
MP says that stereotypes in society about how rape victims should behave are
mirrored by juries. The further fear is that it leads to a cycle of attrition
with juries not convicting, prosecutors reluctant to proceed and police forces
not bringing cases forward (Guardian 2018c). While the idea seems drastic of
trials without juries, the figures highlight that complainants are not being
believed by juries. The system is failing victims to such a degree that the
rates of conviction look like rape has been decriminalised. (Hohl and Stanko
2015 cited by Kyd et al., 2017 p. 914)
The Sexual Offences Act 2003 changed how the law perceived rape. The focus on
consent is to be welcomed but evidencing consent poses problems for juries.
Evidence needs to be robust and stand up to scrutiny. In the modern age, chat
logs can work both ways to secure a conviction or help prove that a defendant
believed that the complainant consented. The defence is entitled to full
disclosure. However, incomplete logs can lead to miscarriages of justice and
juries need to be told that, they are not the equivalent of having a pen and
paper at the bedside and must not be regarded as such. A jury should enter the
courtroom free from bias and every opportunity should be given to assist a jury
to learn about the myths of rape and innate bias.
Any training given to juries should not be overly emotive but be measured
and authoritative. Routes to verdict should be understandable to all jurors
because they have an important role in reaching a decision. Rape convictions
have improved over the years but there are still problems. The rates of
conviction for young men are shockingly low which betrays bias not only in
society but in the jury system. Let us keep our juries but give them the tools
and information they need to return a just verdict.