This post originally appeared on VICE Canada.
After she said she was sexually assaulted by an acquaintance, Stephanie Stella went home and looked up an article on consent she recalled reading when she was younger.
“I posted it on my Facebook,” with the note, “I think the world is due for a timely reminder about consent,” the Toronto resident told VICE.
That post—and others—would come back to haunt her during her sex assault trial a year and a half later in February 2016.
The man accused of sexually assaulting Stella, Di Yang, was acquitted in March. While reading her decision, Ontario court Justice Leslie Chapin said “the fact that [Stella] did look up articles about consent when she was home, leads me to think that there was some genuine confusion on her part as to whether or not she was consenting.”
While that wasn’t the sole reason Yang was acquitted, it points to a trend in which sexual assault complainants are being discredited in court based on things they post on social media.
According to evidence presented at trial, both Stella and Yang agreed that sexual contact took place. However, Stella said it started out consensual and became non-consensual. She told the court he penetrated her with his fingers after she told him she wasn’t ready for that. Yang’s defense argued the Crown couldn’t prove beyond a reasonable doubt Stella withdrew her consent and that even if she had, Yang didn’t realize it.
During cross-examination, Yang’s lawyer Naomi Lutes brought up the fact that Stella had once posted a comment on Facebook that said “when a woman says ‘no’ it is the beginning of a negotiation.”
“I couldn’t prepare for that,” Stella told VICE, noting the post was six years old.
“It did a very good job of throwing me off my game. Not only is she starting to discredit me right from the word ‘go,’ but she’s showing me how much she knows about me. She had gone into my account and scraped it all the way back. She knew everything I had posted from at least six years back.”
Stella also posted about the fact that Jian Ghomeshi had surrendered to police on sex assault charges the day before she reported Yang to the cops. Ghomeshi’s trial also ended up taking place at the same time as Yang’s—in the same courthouse—something Stella noted on Facebook, where she was chronicling her journey through the criminal justice system.
“She… accused me of trying to get in on the spotlight,” said Stella. Justice Chapin, in summarizing the defense’s position, wrote, “Her social media posts are indicative of someone who’s come to court with an agenda.”
Other sex assault complainants have also found their social media feeds under heavy scrutiny, with some arguing such evidence has little to do with the alleged crime but is instead being used to prop up rape myths.
York University PhD student Mustafa Ururyar was recently convicted of raping fellow student Mandi Gray.
While cross-examining Gray, Ururyar’s lawyer Lisa Bristow brought up a February 2016 tweet in which Gray referred to the court system as a “rape circus.”
“And this was going to be perfect for your agenda, correct?” asked Bristow, adding, “your agenda to show how the criminal justice system doesn’t work for sexual assault victims.”
Mandi Gray. Photo by Canadian Press/Chris Young
“I was actually quite amazed by how many objectives she put upon me, from me being jealous to me having an activist agenda,” Gray told VICE. Despite the conviction, Grayhas said she felt violated by the criminal justice system and that she would “never encourage anyone to report to the police, because of how emotionally, financially, and psychologically taxing it can be.”
In March, three of four men on trial for gang raping a teenage girl from Ottawa were acquitted, despite the judge concluding that the victim, 15 at the time of the assault, was raped. (The DNA of the one man who was convicted was found on the victim’s body.) The judge called the victim’s credibility and reliability into question, noting that she refused to admit to smoking weed and drinking despite the fact that her social media posts indicated otherwise.
Toronto criminal defense lawyer Michael Lacy told VICE the difference between preparing a defense now compared to 30 years ago is that back then you might have hired a private investigator to research a complainant, whereas now social media offers a wealth of information on the record.
However, he said there are rules that protect complainants from having a defense lawyer make assertions based on social media posts that are irrelevant to the matter at hand.
“I also trust that judges are fully equipped to separate meaningful issues that affect the credibility of a witness and those that don’t,” he said.
Lacy said he has a Facebook account solely for the purpose of preparing for trials and has had “tremendous success finding things.”
In 2012 he represented a 27-year-old man who was convicted of sexual assault and sexual interference after having sex with a 15-year-old girl. Lacy’s client said the girl told him she was in college. At trial Lacy asked the complainant if she’d ever lied about her age, which she denied doing; however, he discovered she had created a Myspace account, which requires a person to be at least 16 years old. The line of questioning was shut down at trial, but Lacy later successfully appealed the conviction for his client and a new trial was ordered.
“There’s an example, I think, where it’s quite properly used,” he said, adding, “I’m surprised that people are so open with what they say or that they have Facebook accounts that are not protected.”
Vancouver-based privacy consultant Caitlin Hertzman said there are lots of loopholes on apps like Facebook that allow defense attorneys to get information about a complainant. One of the most straightforward routes is simply asking a complainant’s Facebook friend for dirt.
“You would be surprised how many people are willing to share that just to be part of a story,” she said, describing each Facebook friend as a “loose end.”
Hertzman told VICE that complainants in sexual assault trials are best off shutting down their accounts completely once they report a crime and not talking about anything publicly until the proceedings are over.
“If you felt like there was ever anything on there that was problematic you should assume that it’s already been screencapped and saved,” she said. “So before you shut it down, make sure you get copies of everything to the Crown so they’re prepared.”
She advised against trying to scrub your account because “it takes too long and you’re not going to do a good job.”
Gray told VICE she chose to waive her publication ban because “I realized very early on if I didn’t remove that publication ban there was no way for me to speak out about the abuse that I was experiencing, through university, through the legal system.”
For Stella, documenting her trial publicly, helped her cope with what she described as an “emotional breakdown.”
“You could follow my ups and down on my Facebook. This was to show people this is what we go through—this is what the healing process looks like.” The posts received many supportive responses, some from other survivors, she said.
“That was what really drove me, knowing that I was helping other people.”
However she said having those posts thrown back at her during trial—something she didn’t even realize would be possible without her consent—made her feel violated all over again.
“When they say you get raped again on the stand, I initially didn’t believe it to be true but it absolutely is.”
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