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Saturday, June 22, 2024

Survivors Suffer When Judges Misunderstand Social Media

In 2021, Bradley Anderton, then an assistant district attorney in North Carolina, represented a woman suing a man for misdemeanor sexual battery and assault on a female. She alleged that the defendant had groped her, then beat her up after she’d rejected his unwanted advances. Photographs of the woman showed cuts, bruises, and a black eye.

In court, the defense prodded the woman about her work, knowing she’d been an OnlyFans creator and that the defendant was among her subscribers. Anderton objected, arguing that her job was irrelevant to the case. The judge, unfamiliar with OnlyFans, took a five-minute recess to look it up, then returned to the courtroom and allowed the defense to display images from the woman’s account—he believed the published content explained “the dynamic” between the two parties. Anderton’s client lost the case.

While a judge’s conflation of online sex work and consent would be misguided, also egregious is that he made a significant legal decision after googling OnlyFans on the spot. Assumptions generated about the platform within a matter of minutes were permitted to influence the outcome. 

“Her sexual behavior online, in the eyes of this old, conservative judge meant that she was ‘asking for it,’” says Anderton. “If the OnlyFans account hadn’t been discovered, I believe the case absolutely would have gone in a different direction. He looked it up and made a very fast snap judgment about what it was.” 

In this case and others involving sexual assault and social media, the complainant’s fate rests on the judge’s awareness of how online communications platforms work. Though evidence in sexual assault cases frequently includes social media communications, many judges, often due to a generational gap, lack competence in their intricacies. 

In 2016, for instance, the accused in Canada’s first Twitter harassment case was acquitted. The judge ruled that while he believed the complainants genuinely felt harassed, they had no reasonable grounds to be fearful, despite the accused tweeting a reference to one complainant’s location when she was at a bar. According to journalist Alexandra Kimball, who covered the case, “The first couple of days [of the trial] were largely spent explaining the conventions of Twitter to the judge,” including explanations of tweeting, retweeting, blocking, hashtags, and handles. Had the judge been more knowledgeable about Twitter’s potential for harm, it’s possible he may have understood it as a vector for potential danger and not merely an arena of petty squabbles. (Kimball wrote that after reading the accused’s posts, “ … any reasonable woman would find the sheer volume of his tweets frightening.”)

If a judge does not understand a platform, says California-based lawyer Sam Dordulian, the case is likely to be thrown out or ruled unfavorably. Dordulian noted one case in which a defendant accused of sexual assault argued that the incident must have been consensual because the complainant—a business associate—sent him a LinkedIn request before they met. The judge was unfamiliar with the professional networking site, and had to be convinced that its primary utility was not arranging hookups. 

“The court is so behind when it comes to holding offenders accountable for internet-related crime,” says Melissa Sinclair, social action program director of HAVEN, an advocacy organization for survivors of intimate partner violence. “Abusers are catching on to that, and it emboldens them. It makes them more dangerous, it makes them more willing to take risks, and it increases the level of danger for survivors.”

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HAVEN’s services include accompanying sexual assault complainants to court. Sinclair recalls one case in which an assailant continuously sent threatening Snapchat messages to his victim, promising harm if she reported him to police. The judge struggled with understanding the platform’s auto delete functionality, wondering why there wasn’t any proof of messages allegedly sent. “That was very confusing to the judge,” says Sinclair. “The defense was arguing that the proof was no longer there. We went around and around and around.”

That the court system is ill-equipped to process sexual assault cases involving social media isn’t just lagging; it’s scary. In another case, Sinclair brought Facebook posts to the attention of a judge on behalf of a client who had a personal protection order against the man who wrote them. The order stated that the man was banned from posting about Sinclair’s client, but the judge didn’t see how Facebook posts—even in violation of a personal protection order—were within his purview. 

Social media and digital communications are fundamental to how we live. They preserve records of relationships and transactions, charting the histories of dynamics that can eventually turn criminal. For judges to allow their understanding to stay inadequate creates perilous conditions for survivors. 

“Judges and judicial ethics practitioners are aware that judges need to be competent in technology, and that includes social media,” says Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct and a member of the American Bar Association Judicial Division. 

The Judicial Conference of the United States, which is the federal policymaking body overseeing judges in the US, does not currently ensure that judges understand social media. Individual states have judicial education representatives who are responsible for continuing education, but the level of education varies, and tends to focus more on how judges conduct themselves on social media, not how the public uses it. Judges, while not forbidden from having personal social media accounts, are expected to follow a long list of rules governing who they communicate with and what they can say. A social media tip sheet published by the American Bar Association’s Judicial Division includes reminders such as not posting the dates or locations of judicial meetings, not hinting toward the likely outcome of a case, and to be careful about what they endorse with likes. 

According to the Judicial Conduct Reporter, published by the National Center for State Courts, social media misconduct was the basis for 14 judicial discipline cases in 2021. One was a judge asking for Red Cross donations in the wake of Hurricane Florence. Others involved commenting on cases or providing casual legal advice. Occasionally, disciplines involve judges using social media for sexual purposes. In 2022, a judge in New York was removed from office for “posting, disseminating, and/or approvingly commenting on sexually charged content or images on Facebook that were demeaning toward women,” according to the NCSC. The same year, in Kansas, a judge shared and requested sexually explicit photos with a complainant and complainant’s wife through a dating site. It’s easy to see why some judges view personal social media use as a disruption to impartiality, or fear that logging on will lead to reprimand. For others, a generational gap is to blame for misunderstanding social media as merely superfluous or distracting. 

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Such avoidance, while rooted in what judges may feel is an ethical precaution, makes little sense in an era so dependent on social media. If judges aren’t able to properly understand and contextualize the evidence before them, what good is the court as an arbiter of justice?  

In recent years, advocacy groups have increasingly lobbied for “trauma-informed” practices in the legal system. “Adequately understanding trauma and its effects requires a coherent and integrative framework that takes into account the nature of traumatic experiences and helps legal professionals, community members, and service providers better understand, accept, and relate to people who have been severely psychologically harmed,” write Melanie Randall and Lori Haskell in the Dalhousie Law Journal. Understanding social media, then, could be considered part of a trauma-informed courtroom.

Attorney and domestic relations mediator Ayanna D. Neal says it is the responsibility of the attorney to educate the judge. “Attorneys frequently assume that judges are aware of everything … You can never assume in a trial that the fact finder knows what you’re talking about,” she says. According to Dordulian, many attorneys do spend significant courtroom time explaining how social media works. But as he put it, “it’s very difficult to explain things that are new and novel to a judge.”

In many cases, attorneys bring in experts to demystify a platform’s basic tenets, though the definition of “expert” is loose, and their knowledge, too, is subjective. In the Canadian Twitter harassment trial in which the accused was acquitted, the appointed social media expert was a detective constable. Even with the officer’s expertise, the judge noted in his verdict that there were “gaps in the evidence about Twitter,” and that his understanding was limited to that evidence.

“I did the thing that everyone tells you to do when you’ve tried everything and it hasn’t worked, and I went to our friendly neighborhood police officers,” the complainant recently told BuzzFeed. “I don’t understand the let-the-courts-decide people. Look around you. It’s not working.”

Right now, qualities requiring proof for a successful judgeship application include education, training, legal experience, ethics, and skills. Some say prospective judges should be required to demonstrate social media knowledge in the application package, including understanding of basic functions like direct messages or the message-delete function on platforms like Instagram. 

It also seems reasonable to require judges to attend annual social media training to keep up with new platforms and updates around how they work. If a judge thinks Instagram is still just for photos, how are they to understand its potential for harassment?

There are nuances to consider when developing education for judges. Greenstein, from the American Bar Association Judicial Division, points out that judges should not independently research case elements such as social media, as that could result in bias. It’s best, she says, for judges to have general knowledge and to be guided by experts brought in by attorneys. “In any judicial education training there is an ethical boundary,” she says. “How much can you train on addiction and how it affects the brain without biasing a judge?”

Still, too many sexual assault cases have been fumbled and misconjectured due to judges’ lack of social media awareness. Ensuring judges understand how platforms work is a necessity of fair examination. Their confusion is a loophole abetting injustice—and abusers know it. Without mandated training to even out the discrepancies in judge awareness of social media, sexual assault cases will continue to be botched.

“Judges are not even running their own courtrooms, in some respects. Defendants are,” says Sinclair. “They know how to manipulate and get around the system, and it undermines the judge’s authority. At what point is education required to catch them up to this?”  

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