‘But her age was not given on her Facebook profile’: minors, social media, and sexual assault trials.

ABSTRACT

This paper examines the role of social media evidence in sexual assault trials in Canada, focusing on cases with underage female victims. Teenage girls are among the heaviest social media users and face unique expectations regarding the performance of heteronormative gender norms. Society simultaneously encourages girls to enact gender roles that emphasize their femininity and sexuality and punishes them for acting according to these standards. When girls engage in performativity online, they leave behind a digital footprint that can be used against them at trial. Through a detailed case study of 14 publicly available judgments, we analyze how judges evaluate girls’ social media content in sexual assault trials that feature a mistake of age defense. Drawing on social media research, legal studies, and the concept of performativity, we show that judges vary greatly in their understandings of gender norms and that this translates to divergent case outcomes. In the ‘guilty’ cases, the judges contextualize social media content as insufficient and unreliable, noting that it is common for youth to lie or embellish facts online. In the ‘not guilty’ cases however, the judges appear to take such evidence at face value and hold girls accountable for having provocative pictures or misrepresenting themselves online. Such practices are problematic because they perpetuate rape myths and misconceptions about victim behavior. We call for greater consideration of the socio-cultural norms that govern girls’ social media use to avoid biased interpretations that adversely shape the outcome of sexual assault trials.

KEYWORDS:

• Social media
• facebook
• sexual assault
• digital evidence
• performativity

Acknowledgments

The authors would like to thank Maxime Laroche and Ruth Moon Mari for their constructive comments on an earlier version of this manuscript.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 When the victim is 12–15 years old, Sections 150.1 (2) and 150.1 (2.1) of Canada’s Criminal Code allows a defense of consent in very specific circumstances. For example, under certain conditions, when the victim is aged 12 or 13, consent can be a defense if the accused is less than two years older, and when the victim is aged 14 or 15, consent can be a defense if the accused is less than five years older.

Additional information

Notes on contributors

Fanny Ramirez

Fanny A. Ramirez is an Assistant Professor of Media Law (Ph.D. Rutgers University) at Louisiana State University where she holds a joint appointment with the Manship School of Mass Communication and the interdisciplinary Center for Computation and Technology. Her research examines the use of information communication technologies in applied contexts with an eye towards issues of discrimination, privacy, and surveillance.

Vincent Denault

Vincent Denault is a Postdoctoral Fellow in the Department of Educational and Counselling Psychology at McGill University and a Lecturer in the Faculty of Law at the University of Sherbrooke. He holds a Ph.D. in Communication (University of Montreal, 2020) and a Master of Laws (University of Quebec in Montreal, 2015).

Sarah Carpenter

Sarah Carpenter is a Ph.D. student in Media & Public Affairs at Louisiana State University. Her research interests include political communication and the gendered use of information communication technologies.

Jessica Wyers

Jessica Wyers is a Ph.D. candidate in Media and Public Affairs at Louisiana State University. Her research focuses on societal issues around emerging digital media and technologies.