A digital media trail of text messages, cell phone call logs and interactions via Facebook, Instagram and other social media can make it harder for victims of domestic violence and sexual assault seeking justice through the courts, according to a recently published study.
In intimate partner violence cases, digital evidence collected from smartphones, computers and tablets, among other devices, can lead jurors to doubt survivors and question their claims of abuse, according to the study.
Though digital proof of abuse, such as photos of injuries or video recordings of an incident, can potentially sway juries in the victim's favor and underscore the seriousness of a sexual or domestic crime, records of digital communications between a victim and their abuser can also tarnish a victim’s credibility.
“This evidence can paint victims in a poor light,” said Fanny Ramirez, lead author of the study and an assistant professor at LSU Manship School of Mass Communication.
She said it's communications that become part of digital trail that "can be unfairly weaponized against victims” who may already have been reluctant to come forward to report their abuse
Text messages, call logs and chats can be tampered with, the report says, which tells only a partial story, often controlled by the abuser or assailant.
In some cases, social media and various messaging platforms are the actual site of abuse, the report says, where perpetrators can control and manipulate their victims.
Researchers pointed out that the cycle of abuse often means survivors struggle to fully extricate themselves from harmful relationships, which is made even more difficult by the connective power of technology.
After observing a domestic violence case over a four-month period, researchers found digital forensic analysts often struggled to recover accurate information from digital devices in a timely manner.
When analysts do manage to retrieve texts or call logs, the information does not always tell the whole story, sometimes at the cost of the victim’s trustworthiness in the eyes of jurors.
In one case, prosecutors presented photos of a victim’s injuries she said were at the hands of her ex-boyfriend. But a call log revealing repeated attempts to reach out to the defendant after the incident was used in court by defense attorneys to undermine her credibility and present her as “cunning and relentless,” according to the study.
“For jurors unfamiliar with the psychological challenges of breaking free from an abusive relationship, it may be easy to accept repeated calls to the abuser as a sign that the victim is not scared,” Ramirez said. “But there are many reasons why victims may still be in touch with their abuser.”
Lawyers must rise to the occasion in these situations by educating jurors on the mindset of domestic violence survivors, said East Baton Rouge District Attorney Hillar Moore.
“You have to explain to the jury, ‘Look, this is what you’re going to hear,’” Moore said. “Can you think of reasons why someone would repeatedly call? She knows the person, they live together, they love each other, they have kids together, are financially tied at the hip.”
Moore added that sometimes victims will hesitate to come forward to report abuse because they don’t want to be embarrassed by the personal content on their phones in front of a jury.
“Victims come up with a variety of reasons why they do not want the charges filed,” Moore said. “It’s mainly them blaming it on themselves. But surely they don’t want the private life on their phone to be exposed.”
In these situations, Moore said, the prosecution would consider filing a motion to exclude certain testimony from consideration. The prosecutor would speak to the judge prior to trial and hand over, say, a victim’s phone to the defendant, but ask that certain contents in the phone be ruled off-limits during cross-examination.
“We would want the judge to rule that the defense lawyer cannot ask about unrelated, personal-types of calls,” Moore said. “Some other kind of compromising pictures, or other things that she may have, we would ask that that be limited.”
By calming victims’ anxieties about reporting or testifying through these types of legal tools, and by ensuring lawyers know how to explain the complex psychology of domestic abuse survivors, Moore said, using digital evidence may end up benefiting the victim.
“I really think that a lot of that type of evidence can be used in our favor, but it must be explained,” Moore said. “Without the explanation, it surely could be detrimental and used against victims.”