Abstract

Emerging research suggests digital communications can be useful for investigating and prosecuting sex crimes and helping reduce barriers to institutional responses to rape and sexual assault. Such evidence, however, may also be used against survivors in court, although little is known about the frequency of this practice in sexual assault proceedings, or its implications for trial outcomes and legal responses to sexual violence. This article analyses publicly available appellate court judgments from sexual assault cases in the U.S. to examine how defence attorneys operationalise digital evidence against survivors in the courtroom, and how judges evaluate social media content in such cases. Findings show that appeals to include digital evidence continue to center on victim credibility and blameworthiness. Although judicial opinions reveal caution in how the courts are interpreting digital communications, my analysis demonstrates that digital evidence and judicial discretion risk entrenching rape myths and problematic stereotypes about ‘ideal’ victims in sexual assault proceedings. I conclude by arguing for the need to amend U.S. rape shield statutes to account for digital communications and the increased scrutiny of survivors they enable, and the ongoing salience of long-standing feminist critiques of criminal legal responses to sexual violence for the digital age.