Is this a Digital Strip Search or a Reasonable Investigation?
There are many examples that demonstrate how the digital age is both challenging and changing the law. Law enforcement in Wales, England, and New Zealand have been requesting those who report sex crimes to turn over their digital devices, such as cell phones, as part of the investigation. This came about because in at least one case the alleged victim had sent multiple texts to the alleged perpetrator seeking casual sex.
When this came out at trial, bolstering the defendant and apparently leading to an exoneration, the prosecution and the police had egg on their face, feeling that they wasted resources. Victim’s rights groups have assailed these requests for victim’s digital communications calling them a “digital strip search” of the victims, since the police can look at all the communications, photos etc. on the victim’s devices, not just the ones pertaining to the sex crime alleged, leading to the victim’s embarrassment and having a chilling effect on sex crime victim reporting, which is already low.
The defense lawyers contend that they have the right to have any evidence which might tend to exonerate their clients and prevent a wrongful conviction of their client and a wrongful punishment by the government. They further contend that the government has access to and the ability to compel disclosure of a wide range of information for criminal and security purposes. In these cases, we are talking about the law of the British commonwealth, which developed differently than the United States after the U.S. Constitution.
Digital Evidence in the United States
In the United States the Federal Rules of Evidence (FRE), which govern the general admissibility of evidence in Federal Court, contains a specific prohibition on the use of some of the victim’s evidence. FRE Rule 412 “(a) prohibits admission of “(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.” Except at (b) “(1) Criminal Cases. (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights.” Whenever the defendant has any such evidence or even evidence close to this, they must ask the court to allow such evidence to be presented at trial.
Differences Between States
Every State has some form of statute or rule along these lines that greatly restrict the admission of sexual evidence about the victim. The purpose of these rules is to prevent a sex assault victim from failing to come forward based on a fear that his or her private past will be put before the world. The only way the defendant could have the evidence of the texts from the victim admitted in the United States is narrowly to show consent or to show a violation Constitutional Rights. Courts examine these claims and the evidence from digital searches very carefully and in the judge’s chambers before they are admitted to a jury. Judges are reluctant to admit unless it very clear that the information falls in the exceptions.
The Global Issues of Digital Strip Search
Characterizing the request for digital information as a digital strip search of victims is a bit of hyperbole. However, it does illustrate the growing tension between application of criminal justice and privacy in the ever-changing technology and science. This is both in the United States and around the world. Remember, it is not impossible that the alleged victim at the beginning of this could send a text seeking casual sex and then decide at the time it going to happen that they did not want it. While that may be a difficult case to prove, if true, it is still sexual assault.