Text Messages & Social Media in Sexual Assault Cases in Canada

Any digital communications – comments, photos, videos or texts – may be considered relevant to the charges of an alleged assault and used as evidence. This especially applies if you had any digital communication with the complainant. Furthermore, any text messages you sent that could be considered of a sexual nature may play a role in the prosecutor’s case.

Most sexual assault cases boil down to “he said, she said” situations, where it is your word against the complainants. Text messages can potentially be used to corroborate or discredit a witness’s evidence. Your text messaging history could help the prosecutor, or your defence lawyers may use copies of what you have said and posted to exonerate you.

Just as a prosecutor can use your texts, emails, and direct messages (DMs) to try to prove your guilt, your British Columbia criminal defence lawyer can also use them to defend you.

For example, suppose you have been falsely accused of sexually harassing or assaulting someone, and the text messages reveal that the other person has an unrequited crush on you and you turned them down. In this case, it could indicate that they only made accusations to get back at you.

Another way you might use your online presence in your favour is the metadata on your posts and cell phone photos. Everything you post online automatically logs an IP address, showing your post’s time and location data. Photos, too, log metadata on your cell phone, so an expert can read the metadata on the picture and determine when and where you took it.

So if you are accused of committing a crime, but your cell phone activity indicates that you were elsewhere, your lawyer may use cell phone evidence in your favour.

It may be tempting to wipe your text message app and online presence after being charged with a crime, especially when you are innocent. However, following your criminal defence attorney’s advice about keeping your accounts open is best.

Often, a lawyer may advise that you keep your accounts active until they can be evaluated by a social media technical professional.

Furthermore, deleting your posts or messages could be a crime if you are destroying evidence. However, you can pause your accounts, or make them private, without deleting them. For example, many popular text message platforms allow you to pause an account without cancelling it and make it private so that only people you approve can view your posts or contact you.

It is always important to remember that any written record of communication can potentially be used in court.

Canadian and British Columbia law permits legally obtained social media posts and comments to be used in court; they are considered the same as text messages and emails. However, your defence attorney may argue that you didn’t mean them as anything but a joke and is irrelevant to your case.

Or, they may argue that because posts can be edited and backdated, and photos can be altered with simple apps, then the evidence that the prosecutor has is inauthentic. Sometimes, the prosecution may twist simple conversations about sexual activity; this is common in criminal cases. Your lawyer may argue that these conversations are circumstantial evidence and do not prove that you committed a crime.

Your lawyer may also use your social media posts and other messages as a positive defence. Every case is different, so how your lawyer uses your social media in your case will depend on your circumstances.