Is the recordable and trackable digital world through which we communicate useful for holding sexual abusers to account? In short, not really.
When a victim of sexual abuse or assault comes forward to the police, one of the first things they are asked is if they’ve had digital communication with the perpetrator. Then they are asked for copies.
For police and the justice system, cases of sexual abuse and violence are challenging because evidence is limited and usually, “there is only two people in the room”, who tend to tell similar – but crucially different – stories about what happened, says David Kirby, manager of adult sexual assault and child protection at the police national headquarters. “What is communicated before, during and afterwards in the electronic space can often have quite an effect in supporting a person’s credibility around what has gone on and what has been alleged,” he says.
Victims can take years to come forward and by that time, digital evidence may be gone. “The longer it takes to report makes it harder – often, not always – for a successful prosecution because of the issues around evidence,” says Kirby. Like anything, digital communication is subject to time. “Not all the telco providers keep the messaging for long periods of time, it’s quite short,” he says. After six months, it’s likely that “all that text messaging will have dropped off”. Police then use what has been stored on devices, but there, people can delete messages. “It might give us a record of communication – but it might not be a complete record.”
But even complete records aren’t black and white. Kirby says, “because there’s often no context around text messaging, then it can be argued that it means different things.”
“The victim might send a text saying, ‘I can’t believe you did that to me last night,’ and the guy might go back and say ‘I’m sorry.’ Well, it doesn’t say what it is that happened… And if that’s all they say, then it’s open for interpretation – what are they sorry for?”
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Paulette Benton-Greig, senior law lecturer at AUT, contributed to research involving 40 adult rape cases and found that “what you would think was a slam dunk in terms of evidence just was not”. Four of the cases included texted apologies from the defendants to the complainant, but “that did not lead to convictions”.
Many of the 40 cases, which happened between 2010 and 2015, included message data between the complainant and defendant. Every case and every piece of evidence was different, “but in the courtroom, in the court trial process, my observation was [records of digital communication] weren’t particularly supportive of complainants. In fact it was often used against them,” says Benton-Greig.
Although records of digital communication are technically accurate, messages are usually short, and easily lose meaning. Take 💃 (the dancing woman in a red dress), Benton-Greig’s favourite emoji. “I use it for a number of different things – to communicate a whole range of emotions. Taken out of context two years later in a trial, it would be easily misread or misunderstood.”
On top of that, judges, juries and counsels aren’t always the best interpreters of digital communication. Transcripts of the trials show tedious exchanges about social media, with judges and counsel not understanding how the platforms worked or being unfamiliar with their language. “What is that L-M-A-O?” asked one judge. “There’s a reference to O-M-G but what does that normally stand for?” asked a Crown prosecutor.
Even outside courtrooms and between native users, digital communication is fraught. In workshops with 28 girls from Auckland high schools, Benton-Greig and her colleagues listened to girls talking about being persistently pressured to send nudes, of wanting to do so as sexual expression, and of the pressure not to (because “Even though it might be the first nude she has ever sent and she was manipulated into it, she would still be a slut,” one said). As well as coercing girls to send photos, boys had shared the photos without consent.
These experiences come under what Benton-Greig calls a “big bucket term” – image-based sexual abuse, which also includes cyber flashing, sextortion, revenge porn and taking images without consent. Usually, image-based sexual abuse happens to women by men. Preventative measures are often warnings to girls to be wary of sending images, rather than condemning boys for coercion and misuse.
In the cases with apologies, defence counsels argued they referred to other things, that they couldn’t possibly be apologies for rape or assault. One said, “Is an apology consistent with the behaviour of a rapist?”
In another case, the complainant was questioned about a message exchange hours after the alleged rape. The defence counsel questioned why she kept replying, and sending him photos of a cuddly dog. In court she said, “I didn’t want him to know how upset I was ’cos he knew basically whereabouts I was [ ] and I – and if he knew that I was upset I thought that he might come round, and I didn’t want him coming round.”
Benton-Greig says that in digital communication, people are doing things they’ve always done. Victims can be subject to grooming and manipulation, the nuances which, like 💃, may not be captured in message exchanges without context. After being assaulted, they can also be negotiating safety. “She wanted this guy to go away, but she didn’t want to say go away in a rude way, because then who knows what he might be capable of.” Replying in a polite and friendly way was self-protection.
Unfortunately, “those kinds of behaviours and strategies don’t play well in the courtroom, because it’s a very black and white, decontextualised place, which doesn’t do a very good job of taking into account gender dynamics or understanding notions like safety.” The defence council made the exchange out to be “friendly texting”. In this trial, the defendant did not give evidence, but his counsel built a defence that she had consented to sex that she later regretted. He was acquitted.