Academic journal article International Journal of Cyber Criminology

Sexting as 'Sexual Behavior' under Rape Shield Laws

Academic journal article International Journal of Cyber Criminology

Sexting as 'Sexual Behavior' under Rape Shield Laws

Article excerpt

Introduction

In today's world, it is almost impossible to go a day without going online. This reality is especially true for younger generations, with the Pew Center finding in 2015 that 92 percent teens report that they go online daily (Lenhart, 2015). But while the Internet may be useful for innocuous tasks such as genealogy reports and posting about family reunions, scholars and journalists have begun to recognize the more sinister undercurrents of the web. From cyber bullying to harassment and beyond, the web can be used to affect people's lives in a multitude of harmful ways. For example, the Internet has made it that much easier to harass and attack victims online, with The Guardian finding that 76 percent of women in America under the age of 30 have experienced some form of online harassment (Hunt, 2016). Cyber-harassment and similar crimes are also global phenomena; a 2014 EU study revealed that one in ten women surveyed reported they had experienced at least one instance of cyber-harassment since the age of 15 (European Agency for Fundamental Rights, 2014).

But perhaps the most disturbing aspect of this trend is how 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. The use of evidence of a sexual assault complainant's prior sexual history has been controversial for decades. As early as the 1970s, scholars have criticized rape trials by noting that "the ordeal faced by the complaining witness" in these trials and have argued that the traumatic experience of being put on trial as a victim "is one of the reasons rape is such an under-reported crime" (Rudstein, 1976).The Bureau of Justice Statistics has found that from 1992 to 2000, "[o]nly 36 percent of rapes, 34 percent of attempted rapes, and 26 percent of sexual assaults were reported" (National Institute of Justice, 2010). While the reasons for not reporting varied, the Bureau's study found that common reasons included "shame, embarrassment, or desire to keep the assault a private matter", "[f]ear of not being believed or of being accused of playing a role in the crime", and "[l]ack of trust in the criminal justice system."

To ameliorate this trend, legislatures across began adopting legislation to encourage victims to report these kinds of crimes and prevent defendants from attacking victims at trial. Perhaps the most well-known type of legislation created to protect sexual assault victims is rape shield laws, which are laws that are meant to protect rape victims' privacy and prevent defendants from using evidence of a victim's previous sexual history to impeach their testimony (Janzen, 2015). The purpose of such laws are to "to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders."

A growing number of nations have implemented these kinds of protections for sexual assault victims, but for the purposes of this paper we will focus on four common law jurisdictions that have adopted formal rape shield laws: the United States, Canada, the United Kingdom, and Australia. This article will explore how these three countries adopted their current rape shield legislation while also briefly noting what some other countries have done or are doing to protect victims of sexual assault at trial. Next, the article will delve into how sexting and other forms of social media have been used as evidence at trial in sexual assault and other related cases. Finally, this article will show how this kind of evidence has been handled by jurisdictions that have different kinds of rape shield laws, highlight remaining issues, and argue that sexting should be considered sexual behavior that is protected by rape shield laws. …

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