Rape, victim credibility and digital communications evidence

• In Event: WCCJ Panel 6 – Rape, Credibility and Consent

Abstract

Within the criminal justice system, there is an increasing use of digital evidence in the form of communication technologies (e.g. social media posts, multi-media messaging, photographs, mobile call logs) and as digitised versions of third-party records (e.g. Social Services files, medical records). Such evidence has potential to identify and corroborate elements of prosecution and defence cases, and can be useful in evaluating witness credibility. It is increasingly important in investigation and prosecution processes, but there are significant challenges regarding the collection, relevance, and disclosure of such material; including concerns that ‘digging for digital dirt’ (Browning 2011:467) is altering the legal landscape in problematic ways. Nowhere is this more hotly debated than in rape and sexual offence cases. Concerns arising from the accessing and collating of digital communications evidence, and determining its relevance, admissibility and probative value have intensified questions of how to simultaneously ensure defendants’ rights to a fair trial and victim-survivors’ rights to privacy and protection from humiliating and degrading treatment.
Drawing on a study of the use of digital evidence in applications made to the Criminal Case Review Commission in England and Wales, which investigates cases where people believe they have been wrongly convicted or wrongly sentenced, this paper adopts a critical feminist lens to highlight the pivotal role that victim credibility retains, both within and beyond the investigation and criminal trial. Credibility is a core concept and a critical evidential issue in investigations and adjudications; the opportunity to interrogate communication devices has led to a starker focus on the credibility of victim-survivors in sexual offence cases. We highlight the ways that credibility, refracted through digital evidence, is conceptualised and operationalised into ‘fact’ which is then used to construct victim-survivors as either convincing/unconvincing, believable/unbelievable, trustworthy /untrustworthy, reliable/unreliable, during the investigation, through the trial, the appeal process, and beyond.

Authors

• Michele Jane Burman, University of Glasgow

• Oona Brooks-Hay, University of Glasgow /SCCJR

• Yassin Brunger, Queens University Belfast

• Olivia Smith, University of Loughborough