Michael, a pseudonymous 40-year-old tech worker in Canada, shudders when he recalls a friend’s party about three years ago. His ex-girlfriend at the time, who was also a work colleague, was there. She was acting as a designated driver that night, so she was barely drinking, but she seemed oddly intent on making sure Michael got drunk. “She made a point throughout the afternoon and evening of ensuring I always had a drink in my hand,” he says. “By the evening, I was very inebriated.”
At one point, staggering drunk, Michael went to the bathroom. When he was inside, his ex let herself in. “I remember saying that she shouldn’t be in there and that she has to go,” he continues, “but she immediately started touching me and trying to kiss me. Then she undid my belt and unbuttoned my jeans.” Michael says she performed oral sex on him until he pulled her off him. Next, she undressed, turned around and guided Michael’s penis inside her. “It felt off — I knew I didn’t want anything to be going on with her,” he explains. “After a few moments, I pushed her away and told her to leave, which she did.” Michael left the party shortly thereafter.
For days afterward, Michael says the bathroom incident “ate at him.” He felt violated, guilty and confused. “I didn’t want it, and I told her to leave, but I was aroused,” he tells me. “I’d never been assaulted before, and I didn’t know how to feel.” He avoided his ex at the office, but eventually, he texted her to tell her that he felt violated by the bathroom incident and that he felt what she’d done was wrong. She, however, brushed off his concerns.
As Michael’s ex rose in the ranks at the company where they both worked, Michael felt increasingly unsafe in his position as her subordinate, and approached HR about what had happened. Initially, they told him to change departments, which he did. But a few months later, Michael received a call from a private legal firm asking about the bathroom incident. “They said they wanted to take my statement on behalf of an investigation called for by my company,” he says. “I complied, feeling that I was going to be vindicated and taken seriously.”
About two weeks later, the investigators shared their findings with him: They could find no wrongdoing on his ex’s part. “I was told that because I was in a ‘dominant’ position [in the bathroom], it was considered consensual,” he says, adding that he discovered at this point that his ex had disclosed months-old sexts to the investigators. “She shared entire backups of our conversations from WhatsApp, where we flirted, spoke sexually and exchanged photos — all while we were together — to prove to the investigators that we had a sexual history.” Michael says these sexts helped the investigators to form the view that the bathroom incident was probably consensual.
In our increasingly digital times, sexts are playing an important evidentiary role in cases of alleged sexual assault. A paper by JoAnne Sweeny and John Slack in the International Journal of Cyber Criminology, “Sexting as ‘Sexual Behavior’ Under Rape Shield Laws,” found that “courts around the world have begun to admit electronic evidence that is to be used to attack a sexual assault victim’s credibility at trial” — i.e., the victim’s sexting history can be used to discredit them or to establish that consent to the sexual encounter was, or could reasonably be believed to be, present.
“Messages with sexual content are admitted frequently in trials where consent is the issue,” says Fiona Culliney, a lawyer specializing in the prosecution of sexual crimes. “This sort of evidence is increasing given that social media, other encrypted communications and text messages are more and more frequently [being] used [in relationships].” Generally when a defense team uses this kind of evidence, Culliney says it’s “either to demonstrate she indeed was consenting to the sexual activity or that he had reasonable grounds to believe she was.”
Sexts also can be used as evidence whether they take place before the incident, or afterward. Post-event debriefs like, “It was so hot when you did X!” or, “I can’t wait to do Y with you again” tend to be more useful to the defense. “After the fact, the evidence is likely to be far more probative,” Culliney says. “But whether it’s before or after, there will still need to be an assessment of relevance and admissibility.”
As Culliney suggests, lawyers and judges do have to be careful about admitting this sort of evidence. Rape shield laws make it more difficult for defense teams to introduce evidence of the victim’s sexual activity with any person other than the defendant, so a general history of sexting would likely be ruled inadmissible. But in cases where the sexting is taking place with the defendant, Culliney says it’s “difficult to argue that a complainant’s messages to a defendant, with sexual context, isn’t admissible as evidence of their wider relationship and her sexual interest in him.”
Once it’s clear they’re not barred by rape shield laws, she explains the question of whether sexts can be admitted comes down to “the issue of relevance and the probative value of the evidence, versus the prejudicial effect on the defendant or the proceeding.”
But how useful and relevant can sexting evidence be?
Well, it depends. Again, after-the-fact sexts that seem to confirm that a sexual act was welcomed are, as Culliney says, probably quite useful, but Sweeny and Slack found that “evidence of prior sexting carries little probative value.” “Although it may be a sexualized act, sexting is not the same as engaging in sexual activity with another person,” they write. “The prevalence of sexting among teens compared to rates of sexual activity indicates that many teens who engage in sexting are not sexually active.” They add that some scholars have compared sexting to flirting, “which is a far cry from a consensual sexual encounter.” In other words, sexting is just not the same as sex.
It can be crucial to stress this point to jurors, and to explain the basics of how consent works. “Of course, if a woman were to consent on one occasion, that doesn’t mean she consented on another occasion — consent is bespoke, in that sense,” Culliney explains. “Flirting doesn’t amount to consent, and I’d expect that if ‘sexting’ evidence were to be introduced at trial, the judge would warn the jury of that.”
In Michael’s case, he was shocked that sexual messages he sent his ex four months before the bathroom incident, when they were still together, could somehow be construed as evidence that the encounter was consensual. “There is literally no relation,” he says, adding that he wasn’t given any clear understanding of how those messages resulted in the conclusion that the bathroom incident was consensual, “just that it was clear to them based on our history of communication that sexual conduct wasn’t out of the norm.”
Being told that the incident didn’t constitute assault was disappointing enough for Michael, but things got worse. Because some of the sexting evidence that his ex produced showed that the conversations had taken place on company time, both Michael and his ex were severely reprimanded and narrowly avoided being fired. “I was floored,” Michael says. “I nearly burst into tears right there, and had to leave for the day.” Six months later, Michael left the company for good. The emotional toll had been enormous. “I felt incredibly embarrassed and exposed,” he says about learning his sexting history had been used in this way. “Even more so than I already was, considering I had to describe the [bathroom] event to two legal investigators.”
Michael’s not alone, either. Victims often find the production of sexting evidence to be humiliating and violating. “It’s commonly a highly distressing area of cross-examination,” Culliney says. “A [victim’s] personal and intimate messages are being passed out to the jury and court, and that’s always a factor the court would need to take into account when determining admissibility — would the evidence have an unfairly prejudicial effect on the complainant?”
Well, would it?
Again, Culliney says it depends on the facts of each case, but according to Sweeny and Slack, sexting evidence is “likely to be extremely prejudicial against the complainant,” especially if that person is a teenage girl. They add that “police, prosecutors and judges [sometimes] view sexting as a criminal act itself, which can only lead to mistrust and disapproval of a sexting complainant.” What this means is that, in the eyes of the people deciding on their fates, victims who have engaged in sexting are tainted — a disturbing fact, given that sexting is a harmless activity that almost everyone engages in.
It’s concerning, then, that these messages can be used to seal a person’s fate months after the fact. “It’s so shitty to hear someone recite [previous sexts] back to you in a legal investigation as though it was incriminating to me,” Michael says. “Very personal desires sent in desire and confidence, to someone with whom it was consensual at the time, being read back to me like it was the hammer of guilt, and the reason why I wasn’t truly assaulted.”
“[Those sexts] are simply not incriminating,” he continues. “The fact that we had sent those messages before doesn’t excuse her behavior, and it doesn’t excuse the damage she did.”
Madeleine Holden
Madeleine Holden is a lawyer and freelance writer based between Berlin and New Zealand. She writes about relationships, sex, gender and whatever the hell else she feels like for MEL.
