“That's How She Talks”: Animating Text Message Evidence in the Sexual Assault Trial

Abstract

This ethnographic study of criminal sexual assault adjudication shows how prosecutors, defense attorneys, and witnesses animate text message evidence. In contrast to other forms of courtroom testimony, text messages function as multiauthored representations of recorded correspondence in the past. Attorneys and witnesses animate texts authored by or said to characterize persons represented at trial. By whom and how the texts are animated shapes trial processes. Through a detailed comparative case analysis of two Milwaukee, WI, sexual assault trials, this article attends to the process by which text messages are said to personify or characterize authors’ meaning and intent. This animation of electronically transmitted text speaks to credibility and variably emphasizes a witness's place within gendered and racialized cultural norms. Rather than unsettling the trope of “he said, she said,” text messages become contested evidence animated by court actors within contexts of long‐standing cultural narratives of sexual victimization and offending.

“This isn’t your father’s police force”: Digital evidence in sexual assault investigations

“…Despite the utility of “digital breadcrumbs” in sex crime investigations, the other side of the sword’s edge is that digital evidence—though seemingly delivering a neutral account—may be difficult to interpret and that the management of digital evidence can be extremely time-consuming for officers and invasive for victims. Early research shows that officers need to be careful to interpret this evidence in the context of the online/digital forms of expression (Slane, 2015) and to understand that interpretations of digital evidence (especially in cases of sexual assault) are malleable despite their “neutral” appearance (Dodge, 2018; Hlavka & Mulla, 2018; Powell, 2015). For example, as complainants’ post-assault social media and text conversations become a common form of evidence in sexual assault trials, scholars are recognizing how this evidence can be misused against the complainant due to misconceptions about how a victim should act following a sexual assault based on stereotypes of sexual assault victims and victimization (Dodge, 2018; Bluett-Boyd et al., 2013; Hlavka & Mulla, 2018; Powell, 2015).…”

“…Early research shows that officers need to be careful to interpret this evidence in the context of the online/digital forms of expression (Slane, 2015) and to understand that interpretations of digital evidence (especially in cases of sexual assault) are malleable despite their “neutral” appearance (Dodge, 2018; Hlavka & Mulla, 2018; Powell, 2015). For example, as complainants’ post-assault social media and text conversations become a common form of evidence in sexual assault trials, scholars are recognizing how this evidence can be misused against the complainant due to misconceptions about how a victim should act following a sexual assault based on stereotypes of sexual assault victims and victimization (Dodge, 2018; Bluett-Boyd et al., 2013; Hlavka & Mulla, 2018; Powell, 2015). As Hlavka and Mulla (2018) find in their analysis of the use of text message evidence in sexual assault trials, “rather than unsettling the trope of ‘he said, she said,’ text messages become contested evidence animated by court actors within contexts of long-standing cultural narratives of sexual victimization and offending” (Hlavka & Mulla, 2018, 401).…”

“…For example, as complainants’ post-assault social media and text conversations become a common form of evidence in sexual assault trials, scholars are recognizing how this evidence can be misused against the complainant due to misconceptions about how a victim should act following a sexual assault based on stereotypes of sexual assault victims and victimization (Dodge, 2018; Bluett-Boyd et al., 2013; Hlavka & Mulla, 2018; Powell, 2015). As Hlavka and Mulla (2018) find in their analysis of the use of text message evidence in sexual assault trials, “rather than unsettling the trope of ‘he said, she said,’ text messages become contested evidence animated by court actors within contexts of long-standing cultural narratives of sexual victimization and offending” (Hlavka & Mulla, 2018, 401). Echoing these findings, some officers described how social media evidence might be used against complainants in the court process; and, thereby, this evidence may actually make the case more difficult to prove at times.…”

“…Digital information increasingly acts as valuable evidence in cases of sexual violence (Carimico, Huynh, & Wells, 2016; Diss, 2013; Dodge, 2018; Hlavka & Mulla, 2018). For instance, text, email, or social media messages sent between the complainant and the accused before or after an alleged sexual assault, security camera footage or cellphone photographs/video providing context for an alleged sexual assault, or even cellphone video/photo documentation of the alleged assault occurring each document the context or content of criminal activity (Bluett-Boyd, Fileborn, Quadara, & Moore, 2013; Dodge, 2018; Powell, 2010; Powell & Henry, 2018).…”

“…Due to the ubiquity of digital technology, our everyday actions and interactions now frequently leave a wake of digital information (e.g., text message conversations, GPS tracking, and internet search histories) (boyd, 2010), resulting in the infusion of digital evidence into many cases of sexual violence (Hlavka & Mulla, 2018; Powell & Henry, 2018). In consequence, a need for new investigative tools and strategies for police investigations emerges.…”