‘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.