After cases like in Steubenville, Ohio, where the assault of an unconscious girl at a party by two boys was filmed and spread on social media, "the question gnawing at everyone, myself...
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Anna Gjika, Ph.D., is an Assistant Professor of Sociology at SUNY New Paltz. She specializes in criminology...
Lee Rawles joined the ABA Journal in 2010 as a web producer. She has also worked for...
| Published: | March 6, 2024 |
| Podcast: | ABA Journal: Modern Law Library |
| Category: | Access to Justice , Legal Entertainment , News & Current Events |
Three high-profile cases of sexual assault in 2012 followed a basic pattern: A teenage girl was sexually assaulted at a house party by one or more teenage boys while she was incapacitated by alcohol. The attacks were recorded and the photos, videos and stories were shared on social media or via texts. The photos and videos were used to ridicule the victims among their peers. Those texts and posts later became evidence in criminal cases. These incidents took place in Steubenville, Ohio; Maryville, Missouri; and Saratoga, California, and sparked national conversations about youth, technology and sexual assault in 2013.
“The question gnawing at everyone, myself included, was: What were these kids thinking?” writes Anna Gjika, a sociology professor who studies crime and gender issues. More than 10 years later, Gjika has attempted to answer that question in her new book, When Rape Goes Viral: Youth and Sexual Assault in the Digital Age. She took a close look at the three attacks in 2012, but identifies a number of similar instances that have happened more recently.
One of the elements the public found shocking about the cases was how many bystanders filmed or photographed the unconscious girls or the sexual assaults as they were occurring, without intervening. In talking to people involved in the cases and to teens in general as part of her research, Gjika found that the young people did not think of their social media as archival so much as “of the moment.” They filmed and posted what was happening around themselves because they were used to doing that. “Sharing an experience has become an integral part of the experience,” Gjika writes.
In this episode of The Modern Law Library, Gjika and the ABA Journal’s Lee Rawles discuss her research into generational attitudes towards social media and sexual assault; the promises and pitfalls of digital evidence in sexual assault cases; how social media can be empowering or degrading for survivors; the social responsibility held by the legal community and the tech industry; and what interventions could be effective to prevent such assaults from taking place.
Digital evidence like cellphone videos and texts can be extremely beneficial to prosecutors looking to prove incidents of sexual assault, particularly when victims are unable to recount their experience because they were unconscious or impaired during the attacks. But Gjika explains that this kind of evidence is not uncomplicated. The way juries perceive the evidence will still be filtered through societal expectations and prejudices. Defense attorneys do not have the same access to digital evidence from tech companies, and usually lack capacity to process immense amounts of data. The expertise, willingness and resources of police departments and prosecutors’ offices to seek out this evidence also vary widely. And the victims can be further traumatized by the use in court of images and video of their assaults, and the knowledge that the images continue to be disseminated on the internet.
In closing, Rawles and Gjika discuss what actions can be taken by schools, the legal community and the tech industry to prevent such attacks or to assist victims whose assaults have been digitally documented. Gjika believes educational programs and trainings for teens need to focus on peer groups and norms, rather than emphasizing individual responsibility, and “must be grounded within adolescents’ lived experiences, rather than on adult fears and anxieties.” She also argues that adults as well as teens would benefit from “ethical digital citizenship initiatives,” where concepts like privacy and online decision-making could be discussed. And she suggests the creation of government-funded organizations to assist survivors with removing digital content from the internet.
Lee Rawles:
Welcome to the Modern Law Library. I’m your host, the ABA Journals. Lee Rawles, and today I’m here with Anna Gjika, author of the book When Rape Goes Viral, Youth and Sexual Assault in the Digital Age. Right Up Top. As you can tell by the title of her book, Anna and I are going to be discussing some very heavy topics. So if this episode isn’t for you, we’ll see you on the next one and please take care of yourselves. Alright, Anna, thank you so much for joining us.
Anna Gjika:
Thank you for having me.
Lee Rawles:
You know what, I’m going to let you sum up why you wrote this book. Can you please ground us in? What was going on as you were considering writing this book?
Anna Gjika:
The book came together. Well, the idea for the book came together about 10 years ago. I would say in 20 12, 20 13, probably all the way through 2016. There were these really high profile cases of teenagers who would sexually assault a young woman in a group setting at a party, usually at often she’s intoxicated or passed out. And then what they would do is create a digital record of the sexual violence and then share it with each other, share it through cell phones, share it on Instagram and Facebook, create videos about it and talk about it and laugh about it on YouTube. And it was this new phenomenon at the time. I mean, we’re much more versed in what digital abuse looks like now, but at the time it was quite new, quite shocking. And it raised a lot of questions around why would you do this right as a teenager?
Where are the consequences of this behavior? And I think at the same time, it made many of us really aware of how much digital evidence we produce every day, how many thousands of photos and messages that are being shared and generated that can in some ways be used against us. And I was really interested by both of these questions. What does technology mean for us? Why are we engaging with it in these what seemed like silly or harmful ways or perhaps thoughtless ways? And then also, what are the consequences once we do engage with technology in this way?
Lee Rawles:
I know that questions certainly occurred to me. One of the cases that you look at is Steubenville, Ohio, and it was literal hundreds of videos, texts among the various bystanders, perpetrators the victim, trying to find out afterwards what had happened to her. I am the daughter of two lawyers and I have worked for the ABA now for 13 years. And my thought, as you say, really the criminal justice system just thinks of this as evidence. This is evidence that can possibly be used in a trial. But you interviewed and spoke to teens to try and get in their heads about why are you creating this archive of what to these separate adults looks like you just documenting your crimes and the teens who perpetrated or who were bystanders filming this and not intervening, didn’t seem to think of it like that at all. And I’d love for you to talk about that right up top because I think there may be some generational differences there. And would love to hear you tell us what kind of the mindset is for the other people at the party seeing this going on. Because this happened in front of dozens of people in many cases.
Anna Gjika:
Yes, dozens of people. Yeah, it’s a great question and it is the question everyone should be asking. And what was frustrating once I was following these cases is it’s the question that kind of got away from everyone, so I really appreciate you centering it. So it’s a few things. I think the most important point that we want to remember is that we as adults on the other side of these incidents see this as digital evidence. In the moment, the young people who are capturing these images and videos are not thinking about the consequences of a digital trail. It is behavior that is of the moment they are hanging out, they are drinking, some people are hooking up. And so it’s much more about, Hey, we’re here. This is kind of what we’re up to. This is what’s going on. I’m going to take a picture of it and post it because that’s kind of what we do with social media and with our phones. We mediate everything.
Lee Rawles:
There was a phrase that you had that really struck me, which was sharing an experience has become an integral part of the experience. And the kids told you, well, we filmed it because we film everything, we post everything
Anna Gjika:
And if no one sees it, did it really happen? That’s sort of where we’re at now, right, with social media. So there was a lot of like, well, I share how I did my hair in the morning, or I share the bowl of cereal I ate. Why wouldn’t I share what’s happening at a party? And it’s only for my friends. I think it’s easy to say, well, why aren’t you thinking about the police? Why aren’t you thinking about state actors surveilling you? But none of us, and it’s not just the teens, none of us really think through long-term surveillance consequences. We tend to think with immediate context in mind. So when I capture and I share something, I’m doing it for my friends from my social, the people that follow me online. I’m not thinking, oh, the police can see this. I’m not thinking this is going to be used against me in a court of law.
And so part of what I want to complicate is the notion that it’s just dumb teens doing this because it’s not. There’s been cases of adults who have been collecting sick leave and are jet skiing on vacations and they post it on Facebook. So these lapses in judgment are across the spectrum, across the age groups that really speaks to how normalized sharing has become. Again, to go back to the quote that you mentioned, that it is an integral part of our experiences and our behaviors that we actually mediate that experience. So that’s one piece of it. The other perhaps more disturbing piece is that many of the perpetrators in these cases, and the bystanders in these cases really did not think that what they were doing was sexual violence. So what you see is a walking back of the harm and the culpability in each case, right?
So the perpetrators in Steubenville, for example, talk about how well Trent Mayes, who was one of the perpetrators and the young woman that he assaulted, well, they were talking beforehand. So this idea that, oh, there was already some sexual interest, perhaps they had already hooked up and therefore if they hook up at this party, regardless of whether or not she’s conscious because she was passed out, she’s given consent in some capacity, which is a very old standing rape myth, right? This idea that previous consent implies future consent, or you have the boys in Audrey Pott’s case who thought, what’s the big deal? It’s just a joke. We’re just messing around. It’s a prank and it’s funny. What is she getting so upset about? So there’s this constant minimizing of the violation and of the crime really as a way to excavate the boys of any real responsibility.
And what was really interesting when I was talking to teenagers just about the cases and their own social media usages is that initially when I gave them Steubenville as a case study, they were really upset by it. And it was immediately the reactions in the focus groups was like, oh, this is so messed up and this is so problematic. And they raped that girl. So everyone more or less identified that there was something really wrong happening. And then as we kept talking about the case, they kind of kept minimizing the sexual violence and they talked themselves out of it in a lot of ways. So then they started nitpicking. They started talking about how well they did know each other Well, the boys were drunk, so should they really be held accountable? Well, she said yes at some point, and she was conscious at one point in the assault, so maybe they weren’t clear why
Lee Rawles:
Did she drink any alcohol? Yes,
Anna Gjika:
Yes. Why did she drink? Exactly. Alcohol is always funny, right? Because it always excuses the perpetrators, but it always implicates the victim. So yeah, so there’s a lot of mental gymnastics or the more sociological term, the reliance on sex scripts to undo the violation. And so it becomes sex. The sexual assault gets rephrased and reframed as, oh, it’s just bad sex or messy sex. And so then what is the harm with recording it? And if your goal, so the third or fourth or fifth component, I’ve kind of lost track where we’re at of this is that if your goal fundamentally is I’m a guy and I want to show my guy friends that I’m a healthy heterosexual male, and here’s me having sex. If that’s the goal of capturing the image or the video, well that gets accomplished. And that goal is more important than questions around legality.
Lee Rawles:
And at this point, I do want to name that sexual assault rape can happen to anyone regardless of demographic. What we are discussing when we discuss the book when rape goes viral, youth and Sexual Assault in the Digital Age is overarching trends that hopefully we as a society can address. And the main ones that we are looking at when these assaults happen is it is boys or teenagers, men doing it to women, and that comes with discussions of patriarchy, et cetera. An interesting thing I found is my teenage years were in the nineties and a little bit in the two thousands same. And when we were reframing or attempting to reframe ideas of sexual assault and consent, one of the things that was talked about was that rape and sexual assault is not sexual attraction so much as it is an act of power against the victim.
And there was a passage you had in your book that really helped me reframe when you’re talking about instances of group sexual assault, more of what’s happening here because that doesn’t as much make sense to me, and it was hard for me to square, and this passage helped multi-perpetrator sexual assault is a group occurrence with its own unique motivations and power dynamics, one that requires a separate investigation of young people’s digital activities and such settings, such assaults are not only about the relationship between victim and offender, but also about those between offenders and bystanders as well as men’s relationships to each other. And in the instances you bring up the digital evidence, what’s especially chilling is it shows the conversations between the groups of teenage boys and their friends and the acts, the violence that they did seem to have been about impressing each other or cementing their reputations, and this was beneficial to their reputation rather than harmful.
Anna Gjika:
Yes, I love that passage. I’m so glad you brought it up. The established understanding of rape and sexual assault is always about power is true. If you are not in a position of privilege, if you don’t have a sense of entitlement, which comes from power, of course, you are less likely to think you’re going to get away with certain things or less likely to think you can impose your desire and your will on others or take advantage of a situation. But I do think it can’t just be this top down, I’m the powerful group and you are the less powerful victim and therefore I get to do whatever. Because I also think once we start thinking through other types of sexual violence experiences, if you think through about L-G-B-T-Q populations, if we’re thinking about female to male violence, we need to complicate the power dynamic a little bit.
But I think the group setting is really, really important. And I think technology really gets at the heart of that because social media is a social tool. If we were just posting online and sharing things online and no one ever interacted with what we shared, I mean, how sustainable is that? Right? At some point we would just say, all right, I’m going to delete all my posts. I’m going to get off Facebook or Twitter or Instagram or whatever and just not feel so rejected every day. And so you need that feedback from others. So there’s that social component there that gets reproduced or is essentially initially created in the group sexual assault group, sexual assaults half the time they’re not even, really not half the time, most of the time they’re not really even concerned with a woman. The person that is being assaulted is a prop.
They’re means to an end. So there’s a lot, I don’t want to get too theoretical, but there’s a lot of work around this is about male sexual desire and it could also be about desire for other men and how that’s in some spaces taboo. And so one way that you can get to bond with other men and express some of that sexual desire is by mediating it through the female body. So there’s one piece of it. The other piece of it is, yeah, I want my friends to see I’m, like I said, a healthy heterosexual male. And for boys in high school, sex is still really important for identity for masculinity. And so you have this group social setting where you have other people who can witness you enacting your heterosexuality, and then by being witnesses there and talking about it and laughing about it and cheering you on, the bystanders also get to participate in this hetero masculine space. And so all it does all around is creates it legitimates your masculinity and then it increases your status. And no one thought they were going to get caught or they were going to be any repercussions because all, like you said, all the group chats and texts that I reproduce in the book, they’re all just laughing and they’re just asking each other for details. It’s the locker room talk, but much more harmful and gone digital in a lot of ways.
Lee Rawles:
Well, I would love to get further into this idea of digital media, as you say in the book, both socially shaped and socially shaping and this feedback loop. And we’re going to do that right after we hear from our advertisers. Welcome back to the Modern Law Library. I am here with Anna Gjika talking about her book When Rape Goes Viral, youth and Sexual Assault in the Digital Age. One of the pieces I wanted to talk about, it was eyeopening for me was this idea of digital media itself, social media itself, creating the conditions that can reinforce these social structures. And it really made me think about how as a teenager, as you’re forming your sense of self, your friends have a lot to do with your self-image. Your peers have a lot to do with your self-image. So do your teachers, your parents, et cetera.
When I was a kid, no one who didn’t know me was weighing in on who I was as a person. And it’s kind of wild to think about that being a part of your childhood. But for a lot of these teens, and we’re talking about normal teens and we’re not talking about sexual violence, they are performing for an audience and they are looking at the audience and it’s like that meme of someone turning a dial and then looking at the audience and being like this, no, oh, wait, back like you’re on. The price is right, and you’re trying to calibrate from audience feedback what your answer should be. And I do think we can identify with that as adults for sure. It does seem to me like adolescents are getting a lot more of that than we used to.
Anna Gjika:
Oh, absolutely. I mean, because if you don’t grow up with social media, if it’s not one of the first socializing agents, of course you’re going to get a lot less of it. So I think it used to be that you learn things from your parents, your friends, your peers, teachers, tv, some, but now it’s social media is one of those key socializing agents. So we get to see a lot of behavior and we get to learn very quickly that how others respond to us matters. But more importantly, that likes matter. So there’s a difference between I’m going to adjust my behavior to make sure that I get a desired response because we all do that in a way, as a teacher, I have to perform a certain way to get specific feedback. As a partner, I perform a different way to get a different type of feedback. So we all adjust. But here it’s not just adjusting, it’s adjusting for a very specific platform based on the rules that platform has set for you.
Lee Rawles:
And I want to narrow in on that, the rules that the platform has set for you, because you make the point that social media platforms do not spring from the head of Zeus. They do not arrive fully formed. The way that user interfaces are designed, the way that feedback is structured, all of these are designed by people. In this case, traditionally it’s been a male dominated industry, and I have seen many examples of, well-meaning product designers not even considering, for example, oh, the product that we have built is going to allow stalkers to track their victims so easily. It did not occur to them. User design, user interface is something that is within the control of humans. You had some thoughts about the tech industry and what their part in this is, and we’re a legal podcast, so obviously I want to talk more about the legal community and what they can be doing, but would love to hear as legislation is floated and circulated about regulation for tech companies, what are your thoughts when it comes to the responsibility of the tech industry and the design of social media platforms?
Anna Gjika:
Yeah, I mean, I think these are some things I’m still in some ways working through still as different solutions get proposed. But I will say that you’re not going to get any real solution to a problem if all of your responses tend to be reactive rather than proactive. So the thing that you were getting at is that, yeah, social media platforms and tech platforms are primarily designed by white hetero males. So there’s a very specific group and therefore they reflect their consciousness in a lot of ways. That’s kind of what we’re seeing in these platforms. One thing that everyone is advocating for and I fully support is safety by design. You have an idea for a platform, what would it look like if you got everyone possible in the room that would be impacted by that platform, and you let them test that out and brainstorm through potentials.
Because if you’re rolling out a platform like Instagram, I’m sure, or Facebook or any of these social media giants, I’m sure if you talk to sex workers for even three seconds, they would quickly identify for you how this is going to be a problem. I’m sure if you talk to trans activists for a second, or BLM activists or whoever, if you talk to anyone from a marginalized group about, Hey, how might this be operationalized against me? They could really very quickly identify gaps in your design and in your thinking. But that sort of assumes that tech companies are really interested in safety by design, and I’m not sold on this. I do think we need to regulate them. I think, and we can talk about it now or we can talk about it later, I think they need to do so much more to help reduce image-based abuse and tech facilitated sexual violence. And I think the revenge pornography and the deep fakes have allowed some of those conversations to happen, but I also think they need to think through, it has to start at the origin. What if you had women and queer folks and people of color in the room while you’re designing? What might they point out for you? What if you had victims of sexual violence? We know it’s rampant and child sexual abuse. What if those people were in the room? What might they help you think through?
Lee Rawles:
And this is too where I think we can turn that same lens on the legal community. Like I said, I naturally come from a certain perspective, just from tangentially being part of the legal community where the first thought is there’s all of this digital material and what this is evidence, and this is evidence that means that we can prosecute for a crime. And you point out, and this is very important for the victims, this is often another part of the crime. This is re-traumatizing material. This is being sent to them, to their friends, to their loved ones. This is being used to mock them or discredit them in some cases, or even when it is being used by prosecutors as evidence, if they have to be in the Courtroom watching themselves be dragged across the floor, that is traumatizing.
Anna Gjika:
We call this the, where a few of us now are calling it the third victimization. In a lot of ways it is, of course, but what that evidence means and how it’s being used of course depends on what your position is in relationship to that evidence. So I think for a lot of survivors, especially young survivors, they are not always interested in interacting with the criminal legal system. What they are most concerned about is being humiliated and bullied and harassed by their peers. And because they are juveniles, they’re really concerned about parents or some of their support networks finding out and them getting in trouble. And this is very different in some ways, though not wildly from an adult survivor who might have more means or resources available to them or who doesn’t have to depend on a guardian to take the next steps in a case, for example.
And so yeah, I think girls’ sexual reputation, I mean the most surprising thing when doing this research is how deeply gendered relationships between men and women remain and how traditional those gendered beliefs are. And I say that as a gender scholar, I just thought there would be more progress, but young victims are just terrified that this evidence is circulating, that when they go to court, there’s a risk that it’s tricky for prosecutors. It’s like, this is great evidence. We can play the video of you being sexually assaulted and we can show the text messages where you’re going back and forth that proves the person’s guilt. And you don’t have to say anything. And that can be good for some survivors, but for other survivors,
Lee Rawles:
Giving witness can be very traumatizing. Whereas in the case of many of these girls, you were unconscious when this was done to you,
Anna Gjika:
But if you are unconscious when this was done to you, you don’t have real recollections of that assault. So now you have to confront in a Courtroom yourself being assaulted, and you are seeing that through the eyes of the perpetrator, which is very different than your personal recollection of the thing. So you’re being objectified in this further way, which can absolutely traumatize you. The other point that I really wish got spoken about more often is we talk a lot about how once these images or videos are shared on social media, they can go viral and they can be used in all kinds of ways against you. I’m also curious if we need to think through how do they get circulated within the criminal justice system? How many cops do they see this? How many lawyers, how are they protecting this evidence? Because there’s always that risk of leakage.
Lee Rawles:
There’s a risk of leakage. And another thing that I thought about as I was reading you talking about that circulation is I think that there’s a moral harm that is done to the witnesses that you have to see this. The ABA actually called recently in one of its meetings, they said, we’re worried about mental health impacts to judges, but also all court staff who have to be present in the room while certain things happen. And one of those things is while violent or very disturbing images are portrayed. And that occurred to me certainly as I was thinking, is there a way that we can say such images have a multitude of harms? And one of them can also be how many people need to see this?
Anna Gjika:
And also what a really interesting point, the vicarious trauma of it, not just for the survivor, but for perhaps others in that room. We don’t know. We don’t know people’s traumas. It can cut a lot of ways. And then there’s these new sort of emerging practices about sometimes survivors and perpetrators interacting through chats or text messaging after the assaults in ways that are used to undermine the claim of sexual violence. So some research I’m working on presently is on the uses of digital evidence in sexual assault cases. And what you’ll see a lot is young women who are assaulted and then after texting with a person that raped them or including language like, oh, LOL, or Thanks for driving me home. And it is these images that, or the perpetrator will text ’em and say like, oh, thanks for last night. It was fun. And they’ll write back and be like, yeah, okay. And then this gets used as proof that they were consenting in some capacity or that there wasn’t really a violation. Yeah,
Lee Rawles:
It’s so hard to tell with tone. And also it reminds me of the people who are so very certain that, let’s say that they could never be caused to make a false confession. They could never accidentally give a wrong witness, and you don’t know what you do until you’re in that situation. But also take into consideration, let’s say you’re a 16-year-old girl who has very foggy memories about what happened last night. You want to find out more. How do you find out more from the person you were with? Do you really think that this girl would say, hi, I think you raped me. Did that happen? That’s not how humans act. So yeah, I could see in a case where she would be like, yeah, hey, so quick question. What was going on on last night? Trying a more delicate way of sussing out what happened, but people will read that and be like keeping them on side so that you’re not in further danger.
Anna Gjika:
Absolutely. And then the other side of it is, or the additional aspect to is that some people need a lot of time to come to terms with experiences and recognizing them for what they were. So there was a case in Canada, r Parsons, where she was sexually assaulted at a party and there’s an image of her getting assaulted while she’s throwing up. I mean, it’s so obvious what’s happening. But after she saw the photos, she had texted some friends and said, oh, I really regret drinking so much. And the police were like, well, this is evidence that maybe we’re missing some of the pictures. She might’ve known what was happening. And you’re thinking, I mean, people say things because trying to save themselves from embarrassment and humiliation in front of their friends as a victim, you’re trying to manage multiple people and multiple reactions. And so this idea that you’re going to get up the next day after your assault, and yeah, immediately know what’s happened, recognize it and want to know the details and that you’re going to confront your perpetrator and they’re going to admit it. It’s so naive, and it’s what the law expects a lot of times. And it’s also what the public imposes on victims a lot of times, but it’s just not the reality of sexual violence.
Lee Rawles:
And let’s talk about the perception of digital evidence once it comes to court. Because as a prosecutor, you may think, oh my God, I’ve got these images. I have these texts. I have video where this girl is limp and she’s being dragged across the floor by two boys. Obviously this is going to show what happened in this case, and it doesn’t necessarily account for our centuries or millennia of other kinds of prejudice. There’s the expectation that there are people who can be more victimy victims or less victimy victims, and it may be that a juror or a judge is coming to this imagery with a whole set of assumptions. So the demographic of the victim matters, the demographic of the perpetrator matters, and when it’s shown in visual form, those things are often very apparent.
Anna Gjika:
Yes, absolutely. I mean, do want to, digital evidence is extremely useful, especially because historically, victims have had such a hard time being believed by the criminal justice system. So I think it can really help bolster their credibility, whether or not how loaded that is, we can talk about, but I do think it can go a long way in helping them provide proof of their case. It can help police really piece together what happened and create a story and a specific set, a sequence of events. It can overcome something with that burden of proof that prosecutors need. So I think those are all good things, and I think if it can save some survivors from testimony or if it can result to plea deals beforehand, I think it can be really useful. However, once we get into the Courtroom, the assumption which I talk about in the book is that once you have this visual evidence that this is, you have reached the truth, right?
As if truth is neutral, and there’s so much socio-legal scholarship that says, we really have to account for everyone’s biases and positionalities when we’re talking about how is evidence perceived in a Courtroom, what do jurors believe? What do judges believe? What are their personal biases? What is the relationship between them and the perpetrator as well as the victim, right? So white jurors, in a rape case where it’s a black man accused of raping a white woman, for example, they’re going to be really biased against a black defendant. Jurors are generally quite biased around women who are sexually active, women who have had too much to drink, obviously minority women, sexual minorities, as well as racial minorities. And so this idea that the visual is neutral, I think is really problematic. We place meanings on everything that we observe. I mean, the oldest example that gets really obviously used is the Rodney King case where it’s a black man in LA in 1992.
He’s getting beaten by the police and for a good amount of the country, a good percentage of the country, what we see is the police beating a black man and his body sort of spasming because of that beating. And then for other parts of this country, including the police and jurors in the trial, the spasms are interpreted as resistance. And that’s when you kind of come to realize that it’s completely loaded based on my own biases, what’s this going to look like and who I’m going to believe? And like I said, for survivors, young people are dismissed as unreliable and dramatic women who, like I said, have any histories of sexual promiscuity, whatever that means, women who are not white, who have had too much to drink or have done drugs, they’re just going to be seen as more skeptical if the perpetrator is young, attractive, rich, all these very stereotypical ideas of what it means to be an acceptable, desirable male celebrities athletes. There’s always that narrative of why would he rape? He can have anyone. Well, that’s not how rape works.
Lee Rawles:
We’ve talked about what digital evidence can mean to prosecution. I think it’s important to address criminal defense and what a defense attorney may say. First of all, often they have less resources when it comes to being able to access digital evidence because social media companies will cooperate with law enforcement, but they may not release to you video photo texts surrounding an incident you may not have access to. We will not have access to the same amount of evidence that the state would necessarily, and what they may say is this photo that was taken is completely devoid of context that might look favorable to my client. And I don’t really have a way to counter that because it’s an image and people look at it and say, that is the truth. So it’s interesting when you brought up the access to digital evidence, and if you are the criminal defense attorney that will not necessarily be available to you, what could be available to you is the victim’s social media profile. And you bring up that many people think, oh, there are now rape shield laws. And so the kinds of attacks that people testifying before about their prior sexual history, things like that, those don’t happen anymore. And you said when you look at what’s going on in courtrooms, that’s just not really true. Could you get into that too?
Anna Gjika:
Yeah, yeah. So I think this is a really important point about criminal defense attorneys. One thing that became really obvious as I was working through and talking to attorneys for these cases is that there’s a massive amount of digital evidence that’s produced. We’re talking thousands and thousands and thousands of pieces of documentation including text messages, chats, photos, images, phones that need to be collected. And so prosecutors, prosecutors’ offices are generally larger than most defense criminal defense attorney’s offices. They’re also better sourced, usually not always, right? Depends how successful you might’ve been in your career. But this means that they have massive amounts of staff that can go through that evidence and that can help them prepare a case. Criminal defense attorneys, right? Again, unless you are very well resourced and very well established, which means you’re only dealing with a certain type of clientele, most people are going to go to somebody that works in smaller office.
They can’t even get access to that evidence. And I think this is really, if we’re going to talk about justice, if we’re going to talk about equity, we really need to think through what does that mean if some perpetrators can access better criminal defense attorneys? And then certain perpetrators, which of course is always poor, marginalized populations are just dealing with average criminal defense attorney who cannot possibly access all of this information or help sort through it. And so I think this is a real problem in criminal cases, I think if criminal defense attorneys are working with the evidence that the prosecutors are providing them, again, this notion that you are going to get a very clear sense of what a specific piece of evidence means is flawed at best. One of the attorneys that I spoke to was very clear in saying social media evidence or digital evidence is like any other kind of evidence.
You can still argue context like what happened before, what happened after. And that needs a lot of triangulation for lack of a better term. So you have to find text messages and other videos and other witnesses before the event and then also after the event to try and counter that. But that might not always be available to prosecutors. And so a defense attorney can successfully argue that actually before this video that looks like a rape was taken, the victim said that it’s cool. This is totally fine. You haven’t my consent. We can do it this way. And so that’s a real problem. The other thing that’s happening, like you were saying, is if they can’t access information from social media companies on a specific case that they’re prosecuting, what they can do is mine a victim’s digital activity. So participating on social media opens all of us up to much more scrutiny in a lot of ways.
So what they’ll do, and this has happened in multiple cases, is that defense attorneys will start looking through all of your socials to find instances where maybe it shows what they call bad behavior, blameworthy behavior. So you have the drinking, maybe sexy outfits being posted or irresponsible, traditionally irresponsible behavior or evidence that you’ve communicated with a perpetrator and you were flirty. And all of these can be used against you. The rape shield, I mean, I’m talking to more or less a bunch of attorneys who understand how rape shield works, but rape shield laws are not always applied when it comes to excluding evidence of survivor’s sexual history. Because if it’s just about showing behavior, parting behavior or sexually flirtatious behavior or sexually suggestive behavior is not necessarily always included in that sexual history. So there’s a lot of ways that defense attorneys can argue for relevance, and prosecutors can’t do much about it if judges are admitting it.
Lee Rawles:
Well, this is a pretty sobering discussion. We are going to take a break here from our advertisers when we come back. Let’s talk about what can be done. Welcome back to the Modern Law Library. I’m your host, the ABA Journals, Lee Rawles here with Anna Gjika, author of When Rape Goes Viral, youth and Sexual Assault In the Digital Age. Like I said, this is a sobering discussion. I think it’s really hard on people to think about this happening to kids and this being done by kids. I do want get us to the parts where we talk about, well, what can we do as a society to protect them? First, though your title when rape goes viral can also refer to when victims and survivors use social media in order to narrate their own stories, try and publicize an injustice or give a counter narrative to how we’ve articulated stories about sexual assault. So let’s address that part because it’s not all just about the traumatizing images being circulated. It can also be about the survivors telling their stories. So when you were speaking to people and looking at cases, what did you really find?
Anna Gjika:
Social media would not have survived as long as it has, or it wouldn’t be as popular as it is if it was a complete CPO of negativity. So I think historically, and this continues to hold true, survivors of sexual violence have a very hard time interacting with the criminal justice system. It’s why reporting rates are really low. We know prosecution rates and conviction rates are abysmal. And so what social media and digital platforms have done is really given a space for survivors to tell their stories and to find support systems to find one of the most important things for survivors is to be heard and to be believed. That’s what comes up again and again and again in the research about what does it mean to have some sort of justice? What does justice or accountability look like? And so what digital platforms do is they really create that space.
Survivors can find other communities of survivors who will listen to them and who will help provide them with the resources that they need in the community that they need. Obviously, we saw a version of this with Me too. It’s a space to really raise awareness and share the range of sexual violence and the frequency, the prevalence of the problem. And so I think that’s a really useful space, and for some survivors, especially ones who are savvy with technology, it can really be mobilized into better accountability. So Savannah Dietrich is one of the survivors I talk about, but also Daisy Coleman, although she actually ended up committing suicide, I want to say eight years after her incident. But there are ways in which some survivors have been able to get on social media, narrate their stories, and also talk about what the criminal justice system experience was like for them. Were they taken seriously? Did the perpetrators get the right amount of punishment? Were they even consulted when that punishment happened?
Lee Rawles:
And that has led to actual change. There have been times when plea agreements were nullified, when court records were opened when there was real legal change.
Anna Gjika:
Yeah, right, exactly. In Steubenville, everyone was worried that there was going to be corruption, that there was not going to be transparency. Initially, I talk about in the book that there was a plea agreement in place that they were talking about, and then because the case got so much social media attention and international attention, really media in the media, they revisited that entire thing and said, no, we now need to prosecute and we need to open it up so everyone can kind of see what’s happening, because we need to show that we’re taking the case seriously and that all these accusations or concerns over corruption and unfairness have no legitimacy.
Lee Rawles:
When you looked at Steubenville, one of the things that struck you was that the narratives that came out of the case didn’t seem to actually be addressing the problem in helpful ways that would help us avoid this in the future necessarily. There became narratives about, well, this is showing us that parents should be more involved with their kids, that we need to raise awareness about alcohol use
And other things that you say, we look at the research and that’s not these individual based strategies where we talk about how this shows the need for individual accountability don’t seem to impact the behavior. So now I’d like to turn to how do we reach teens? One of the important things you say is that the focus should be on peer groups and norms, and that this is a quote here, must be grounded within adolescent’s lived experiences rather than an adult’s fears and anxieties. So let’s get into that. When you look at the research about how we can actually help combat this and hopefully stop incidents like this from happening, what are the strategies that seem to show promise?
Anna Gjika:
This is so important? And it’s actually timely now because we’re doing the same thing with the deep fake and social media harms conversation, which is essentially we’re saying we need to limit teens social media engagement. We as adults need to monitor what they’re doing, and it does individualize the problem. When you talk to young people about why they’re doing what they’re doing on social media or why they’re taking and sharing harmful photos or creating DeepFakes of each other or any of these things, what the teens themselves are saying is, oh, this is about masculinity. This is about status. This is about getting props from your boys, basically. So getting approval from your peers, which means if in your peer group this is acceptable and celebrated behavior, then it doesn’t matter what the adults around you’re doing, it’s your peers that matter the most when you’re a teenager.
So you’re going to find a way to get at the same thing. And we know this from history, anytime we tell people, don’t do this, they’re going to find new ways to do it. And so it’s really important if we’re going to listen to teenagers, which is the whole point of this book, they are talking about gender norms and they’re talking about sex education, and I think we really need to make sex education a priority, and I think we need to start younger. And I know that sounds in some ways like a pipe dream because we’re working, we’re going the opposite way in the country in a lot of ways. But what would it look like if we just made it okay for young people to talk about? What are all the questions and the curiosities and the anxieties that you have around sexuality, around the body?
What does bodily autonomy mean? What do we mean when we say sexual ethics? And so creating spaces where that’s safe judgment free, preferably with not too many adults in the room, definitely not with parents in the room. What you want is a few educators, but the facilitators should still be other teens, maybe slightly older teens. But I think that conversation needs to happen in a very safe way and in a much younger age. How do we relate to each other? What are our views about boys, about girls, about body? Can women and girls have sexual agency? Can they have desire? There’s so much concern about, oh, young women, digital images get leaked. I mean, images get leaked and they commit suicide. Or young people who are extortion is a really big problem now who are extorted for funds or various things based on sexual images that they’ve shared, and their solution is to commit suicide. And this is heartbreaking because that means they don’t have anyone in their lives that they can talk about this with. That means we’ve made sexuality and sexual experimentation and curiosity, a crime, a deadly crime in some spaces. And that means for me, that means children don’t feel safe talking to the people around them about all the things that they’re thinking through and feeling. And so how do we create those spaces? And then as we create those spaces, how can we also include social media in that conversation?
Lee Rawles:
One of the pieces you talk about, the people around them, the kids around them, and you talk about we need to be including bystander intervention strategies. One of the most chilling things about these stories is how many people knew not only after the fact and were spreading after the fact, but how many people took video as it was happening that didn’t even consider themselves as, well, I’m not doing something wrong. I’m not committing an additional violation. I’m just filming what I see. And bystander intervention strategies and then the term that you use is ethical digital citizenship initiatives. It is interesting to me the different attitude teens seem to have when it comes to existing in a public space, meaning you’ve given up any regard to privacy or what privacy means. Absolutely. A lot of, not to wr my hands and be a real ant about this, but when I see these YouTube channels devoted to playing pranks on strangers, mocking people who just literally are walking down the street or interacting them with harmful ways, and I hear people in general, but teen boys talking about people as NPCs, and that means non playable character.
And it’s a term that comes from the video game world where it’s when you see a person as someone who’s just a non playable character, they’re essentially scenery to you. And I find that alarming. And so I would love for you to talk a little bit about this ethical digital citizenship initiative idea.
Anna Gjika:
Yeah, I mean, I don’t think we are. There’s been this rapid uptake of technology, and I think we’re now at a reckoning moment. We’re really have to reflect on why did we do this? And also, wow, we really have not dealt with all of the consequences of constantly mediating ourselves all the time. In the literature it says that we’ve gone from consumers of media to producers of it or prosumers. We are both producers and consumers of it. So we’re all the main characters of our own stories starting in our own movies basically. So there is this way in which technology, especially putting a phone in front of your face distances you and the thing that you are observing. And so you are now a player in a video game or you are now a director in a movie. You are no longer a participant or a bystander. And I think this is a real problem, but I don’t think it’s limited to children and to teenagers. No,
Lee Rawles:
I
Anna Gjika:
Agree. You go to a concert and all you see is like 8,000 screens that are being held up recording the thing that you are sitting there to watch. It’s unclear why that’s where we’re going. I think we need to start very, very early, and I actually think this has to happen across the board for adults too. One of the things that constantly frustrates me is that I hear adults talking about how thoughtless and teenagers are and children are with social media and how they are not thinking through the consequences of their actions and they don’t think about consent. And then I see parents who mediate their children’s entire lives on YouTube channels. I see adults who take photos of every waking moment of their lives and never ask anyone for consent. There’s never a, can I take a photo of you? Are you okay with me sharing this photo of you?
Here are the people I’m going to share it with, right? We don’t allow this with each other anymore. So that thing that you said about for teenagers now, it’s like if it’s in public and I see it, that means I can record it. I think that’s full stop true for everyone. And I think this is really compromised what our definitions of privacy mean and this notion of the right to be forgotten, the right to not have your entire life documented. And so I wonder what it would look like instead of responding with fear and trying again to always regulate what young people are doing. Even though I get the anxiety, I wonder what it would look like if we actually help them think through, why are you taking a photo, right? If you want to share this, what does it mean? Why are you sharing it?
What is the intent of you sharing it? Do you know who’s looking at your data or who’s going to interact with that? What are you thinking about? How do you put yourself in the position of the other when you share information? One thing that came up constantly from young women is that boys ask for and share nudes without consent because they don’t understand what it’s like to be a girl. They don’t understand that your entire sexual reputation hinges on whether or not they share news of you, because if a boy shares a dick pic, nothing really happens. Their sexual reputation, their character, none of these things really get blemished, whereas the consequences that are much more severe for young women. So how can we have that conversation and then include the digital practices piece of it, so ethical citizens, not just in terms of like, oh, clean up your LinkedIn profile or make sure your university can find your socials. So create some fake accounts citizenship in terms of how am I responsible to others? How do I think about others’ autonomy and their privacy and respect and boundaries and consent, including our digital practices? And I don’t think we can expect tech companies to do that because profit for tech companies, which I meant to say earlier, is so much of it is dependent on sharing terrible behavior because terrible behavior gets likes, it gets circulated, it gets audiences, so they’re not invested in regulating it.
Lee Rawles:
Well, the closeout, I think it’s really important everything you said about these educational efforts, but you also brought up an idea of a real world thing that could be done. I was reminded of it when you talked about the right to be forgotten. As a journalist, I’m very attached to First Amendment. I’m pretty attached to the Communications Decency Act Section two 60. Yeah. But one of the things you brought up, I thought, oh, maybe that would be a way to solve one of the big harms, and that is it is difficult, if not impossible, to make sure that images, that videos are removed from circulation. And you said, why can’t there be a government funded organization or organizations tasked with helping survivors remove digital content from the internet? For some people, you hear about this with victims of child sexual abuse material being circulated for decades, and that if that could be your full-time job just reporting the images of your own abuse and asking for them to be taken down, why can’t we have a better system and not, as you say, rely on tech companies to have a process after it goes up to say, okay, well, we’ll review it and in seven to 10 days we’ll tell you what the decision was, but not show you that the sausage making.
Can there be a different system tasked with helping survivors remove this kind of content from the internet?
Anna Gjika:
Yeah. I think this intervention can happen in multiple instances, right? I say one thing that we can do is have tech companies, I mean, they’re billionaires. They can take some of those funds and actually create organizations whose entire responsibility is to take down these images and make sure that they don’t get circulated. And Facebook just did this with, or Meta just did this with Take It Down, I think is the organization called. I think we can, if we pass some sort of federal law, we did a better job of really recognizing image-based sexual abuse as a form of sexual violence and had more consistency and awareness in our laws. I think we can absolutely create entire initiatives, government fund initiatives where, like you were saying, or like I was saying, their entire job is just take down photos and make sure the onus is not on survivors themselves.
Which yes, it is a full-time job and it’s a really traumatizing, full-time job. The UK has started something like this. Australia has something, an E safety commission in place in Canada. They’re doing something like it. So models exist. So we can certainly consider it though. I find the United States really, really, really behind in recognizing tech facilitated violence. I also think tech companies really need to think through themselves. How much of the material do they need to review? Why do you have to have a subpoena half the time? I mean, reporting has been made easier, but once something is reported, I don’t understand why it can’t just be taken down. I don’t know why it has to be a prolonged process. I don’t know why it can’t be flagged ahead of time. Instead of putting the onus on survivors
Lee Rawles:
Finding ways to use ai, for example, to say, oh, this is an image that has been reported before.
Anna Gjika:
And they do some of that, but again, not enough why sometimes they require survivors to file a criminal charge before they take down material, which for survivors who are not interested in getting involved with the criminal justice system, I mean, that’s a huge impediment. And then I think one thing that we didn’t get to that I did want to say, I also think the law and law professionals and legal professionals in general can do better. There is so much evidence that gets generated through technology, and there’s so little resources being spent on investigating sex crimes on digital forensics that it really signals lack of, I mean, a sort of institutional abandonment where sexual violence is concerned. And I would really like the criminal justice system to reallocate some of the billions and billions of dollars that they have in their budgets and really consider what does it mean to investigate sexual violence and image-based sexual abuse.
Lee Rawles:
Well, Anna, I want to thank you so much for coming on this episode of the Modern Law Library. Believe it or not, listeners, there’s a ton more in the book that we didn’t even get to. If you’re interested in her thoughts on the way that, for example, revenge porn laws or child sexual abuse material laws are applied in these cases, she talks all about that. We talk about alternatives to the criminal justice system and restorative justice practices. We just don’t have time for it in this episode. If people wanted to reach out to you, Anna, and talk more about this or about your ideas and your research, how could they do that?
Anna Gjika:
Yeah, I mean, so I am on Twitter or X, whatever it’s called nowadays, it’s G at gca PhD. And also people can always, the good thing about being an academic is that my email is completely publicly available. It’s my last name and my first initial at my university, so people can always email me there.
Lee Rawles:
And for those who are trying to look up when rate goes viral, Anna’s last name is spelled G-J-I-K-A. Thank you so much for listening to this episode. If you have an idea about a book or author you’d like me to speak with, go ahead and email me at books at ABA Journal dot com. And thank you so much for tuning in. Please rate review and subscribe in your favorite podcast listening service.
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