Sexual Assault Cases often Hinge on Social Media Messages
The testimony of the complainant and the accused was once the key evidence in many sexual assault cases, with the court left to decide who was telling the truth. In today’s electronically connected world, the messages we constantly send each other have become important pieces of evidence following allegations of sexual assault.
In about 80 per cent of the cases I defend, electronic correspondence is part of the evidence. Sometimes it supports the complainant and other times it reinforces the accused’s statements.
Depending on what was said, electronic records have proven to be a great asset to my clients. Or a great liability.
When I agree to represent someone accused of sexual assault, one of the first things I tell them is to keep a copy of all electronic messages that relate to the incident. There may be a chain of text messages with the complainant that suggests the sexual activity was consensual. Even if the exchange is not so overt, the evidence may expose inconsistencies in the complainant’s story or undermine their version of events.
If the messages were sent on a platform such as Snapchat where they are deleted after 24 hours, I advise my clients to save them, take a screenshot or take a photo with another phone. With messages on other platforms, I tell them to make a copy and store it on a secure device. They should not assume that they will be able to retrieve the messages a year or more later when their trial begins.
I also encourage my clients to send any relevant messages so I can keep a copy on hand. There is always the chance their electronic device could stop working or be replaced by a newer model without the messages being kept. And on some electronic platforms, if a complainant deletes a contact that also deletes any messages exchanged with that person.
Messages backed up my clients
I recently represented a man accused of sexual assault in a school setting. The key issue in the case was whether the alleged victim was 18 – the age when consent can be given – when the incident occurred. In her evidence, she said they started to exchange phone numbers and text messages in January and then had sex in February, months before her 18th birthday in June.
I applied to the court to present an email as evidence. In that email sent in May, the complainant wrote something to the effect of, “If you need to contact me, here's my phone number.”
I was able to raise doubt as to whether they had exchanged messages earlier. If their private relationship only started in May, the court agreed it seemed likely a sexual relationship may not have occurred until after her birthday in June.
Messages eroded my client’s credibility
I have also had cases where electronic messages raised questions about my clients’ credibility. For example, I represented a client who sent a Snapchat message to a woman whom he had sex with while she was sleeping. “Were you awake. Even just a little?” he asked her.
She kept a copy of that message that was presented as evidence at trial. The court did not accept my client’s testimony that he was joking when he sent those words. He was convicted since someone cannot consent to sex if they are sleeping.
I have had other cases where the amount of electronic evidence is overwhelming, indicating something did happen. In many of those, no evidence would have existed had there not been electronic messaging between the parties.
Presenting electronic messages as evidence
If you have saved messages from the complainant that undermine their allegations, we simply can’t present them as evidence at trial. As your defence counsel, I have to make a third-party record application to the court. It must clearly state what the evidence is that I want to present and why it is relevant.
I must be careful when making this application. While it has to be clear about what I want to do, I will try not to warn the complainant and their counsel of what is being alleged, especially if it contradicts their testimony.
In certain circumstances, I can wait until mid-trial to bring forward an application for third-party records, allowing me to use the information they contain in cross-examination. If that application is approved and the information contradicts what was given in previous testimony, that will significantly reinforce my client’s defence.
The Crown attorney, on the other hand, does not have to make a similar application to the court to introduce social media messages as evidence. This is a new area of law that defence lawyers are coming to terms with.
Call me for advice
I have represented many people accused of sexual assault in Ottawa and area courthouses for decades. I know how important social media messages are in these cases. I also know how to cross-examine a witness without invoking the “twin myths” (the idea that complainants with a prior sexual history are more likely to have consented and are less worthy of belief). Call me for a free consultation, in French or English.