Text messages and social media can be used as evidence during sexual assault cases – something which may prove very useful for the defence.
Can text messages and social media evidence be used in sexual assault cases?
In the majority of sexual assault cases, it is a he said, she said situation. Put another way, it is the complainant’s word against the defendant’s.
Traditional’ evidence such as witness testimony and CCTV footage might not be applicable, especially if the incident happened behind closed doors. In lieu of such evidence, the case may instead revolve around electronic and digital communications that were sent, made, received or posted by either party. This includes:
- Text messages
- WhatsApp messages
- Social media messages and other forms of publicly posting, eg Snapthcat videos
- Social media posts – posting on Facebook or other social media accounts
- Phone calls
Some of this evidence may already have been available to the public, such as social media posts. Others may have been private communications, but have been brought to light by the police, the Crown prosecution or the defence. This is permitted so long as the evidence is legally obtained and is admitted at trial by the court.
Can I use text messages and social media posting as evidence in my favour?
If you have been accused of sexual assault, things such as text messages and social media can be a useful element in your defence. Every case is different, but technology, photographs and other types of online communication can be beneficial and share more lights on the events.
For example, there may be a chain of text messages between you and the complainant suggesting that 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.
Social media posts and other online activities can also portray the complainant as an unreliable witness. In some cases, the phone records might be requested to examine the complainant’s messages to a friend and family whether the act was consensual.
Can I get convicted from text messages? – Evidence that goes against you
A defendant accused of sexual assault may find his defence contradicted by incriminating texts sent to the complainant after an alleged assault.Where the evidence does not go in your favour, that does not mean that the trial is a forgone conclusion.
We acted in one case where our client sent apologetic text messages to the complainant after the alleged assault. But during the trial, our cross-examination of the complainant exposed her as an unreliable witness. Our client was found not guilty, despite the damaging text messages that had been sent.
Read the case study in full: Client Charged with Sexual Assault During a “Tinder Date”
When you are already facing sexual violence or sexual harassment allegations, the best way is to remain calm. You should always be careful when hitting “send” on your phone and posting anything on social media. Avoid engaging in online communications when in highly-charges emotional state.
What are intimate images?
According to Canadian laws, an intimate image is a picture or recording in which a person is nude, partially nude or engaged in explicit sexual activity that was made in private circumstances
Criminal Code, RSC 1985, c C-46, s 162(1).
You cannot show a picture of someone else who is privately doing a sexual act, is naked or exposes an intimate body part, without that person’s permission. With some exceptions, is illegal to view, keep, make, post or send intimate images, pictures or videos of a youth under 18 years old.
The importance of a legal defence lawyer
Managing evidence is one of the key tasks of a criminal defence lawyer. If text messages, social media and other digital communications exist in support of your case, these need to be exploited to their full potential. As defence lawyers, we will examine these avenues and present the relevant evidence to the court.
If, on the other hand, damning evidence exists, we will work to limit the damage. As a criminal case, the prosecution must prove your guilt beyond reasonable doubt. Text messages and social media might not be conclusive enough for a conviction, especially if the complainant’s narrative can be undermined.
Vancouver criminal lawyers experienced in sex crime cases
If you have been accused of a sexual offence, please contact us at Mickelson & Whysall Law Corporation. We are highly experienced defence lawyers with extensive success in defending sexual assault cases. We know how to utilise the evidence available and promise to get the best possible outcome in your case. Contact us now for a confidential discussion.