Abstract
Records of mobile phone text messages and social media posts and messages have become a ubiquitous feature of the evidence that is admitted in rape trials in Australia. Messages sent by complainants – to the accused and to other people – attract particular scrutiny during cross-examination. In this article we consider whether the deployment of digital communications evidence is impeding the long-term effort to transform rape trials and decrease the prevalence and influence of ‘rape myths’. Our study is informed by qualitative analysis of transcripts from 108 rape and sexual offence trials finalised in Victoria and NSW between 2013 and 2020. We show that digital communications evidence is often engaged in ways that are insensitive to the uniqueness of text and social media messages as modes of communication. We conclude that the tendency to assume that digital communication can be interpreted just like any other written record (such as a police statement) operates to the disadvantage of complainants, and in ways that impede just outcomes.
Introduction
50 years ago (e.g. Rape Offences (Proceedings) Act 1976 (Vic)) Australian legislators began a process of statutory reform that responded to feminist activism and ‘demands for social and political recognition of woman’s position vis a vis rape and rape laws . . .’ (Scutt, 1980: vii). The concept of ‘rape myths’ was in its infancy then (Brownmiller, 1975), but over the decades, this phrase has been widely adopted to capture a set of empirically inaccurate ‘facts’ and gender stereotypical values, attitudes and assumptions that impede justice for victim-survivors of sexual violence and which have been engaged by persons accused of rape (or lawyers acting for them) to deny and avoid criminal responsibility (Hudson et al., 2024; Law Commission (UK), 2025: 4–5). There is now a wide body of literature that demonstrates the continuing prevalence of rape myths in criminal trials (e.g. Craig, 2018; Daly, 2022a; McDonald, 2020; Quilter and McNamara, 2026; Smith, 2018), and their influence on jury deliberations (e.g. Hudspith et al., 2024; Leverick et al., 2025). Meanwhile, the law reform work continues. In its 2025 report on improving justice responses to sexual violence, the Australian Law Reform Commission (ALRC) identified addressing ‘myths and misconceptions in sexual offence trials’ as a high priority (ALRC, 2025:148). However, nowhere in the 600+ page report is there any consideration of one of the main vehicles by which problematic rape myths and stereotypes enter rape trials: records of mobile phone text messages and social media posts. We found a similar gap in the 11 other state, territory and Commonwealth sexual violence law reform inquiry reports that have been published since 2020 (e.g. Law Reform Commission of Western Australia, 2023; New South Wales Law Reform Commission, 2020; Victorian Law Reform Commission (VLRC), 2021). This is despite the fact that it is now common practice for such records to be collected as part of police investigations (Dodge et al., 2019), and for complainants in rape trials to be rigorously cross-examined about digital communications that the defence asserts are suggestive of consent or fabrication or both (Wilson-Kovacs et al., 2023).
Given that none of the reform undertaken or considered to date has been squarely directed at the unique challenges posed by evidence of digital communications (before, after, and sometimes during, alleged crimes of sexual violence), it is important to understand how such evidence is engaged in rape trials, and the role that it might play in keeping rape myths in the courtroom. This is not a uniquely Australian issue (see, e.g. Craig, 2026; McDonald, 2020; Ramirez and Denault, 2025), and deserves attention in all jurisdictions where attempts are being made to improve the quality of courtroom justice for sexual violence victim-survivors.
This article has two parts. Part II reviews the literature on the interpretation of digital communications, and text messages in particular. Part III presents insights drawn from analysis of transcripts of more than 100 rape and sexual offence trials in NSW and Victoria. We show that misinterpretation of text and social media messages, and disregard for the unique features of these forms of evidence, occurs regularly in trials. This disconnect can produce 21st century technology-facilitated forms of re-traumatisation and injustice for victim-survivors of sexual violence.
What is unique about texting as a method of communication?
Texting is not only a ‘spoken language that is written’ (McSweeney, 2018: 6), but a discrete form of expression and communication with distinctive characteristics (Tagg, 2012). Hlavka and Mulla (2018: 403–404) have emphasised the importance of appreciating the differences between text messages as a form of evidence and other forms of written communication: . . . It is the immediate and often intense interaction that is pivotal to understanding text message communication. The dually authored text message transcript is often time-stamped, and the swift nature of communication seems to unfold in short periods, with participants able to send several messages back and forth within seconds. . . . In comparison, letters and emails are most often single-authored and have longer correspondence lags, and do not reflect the coauthored features that text message transcripts exhibit.
One of the features of text message exchanges is that although, in some respects, they resemble face-to-face conversations, they are written communications with certain unique characteristics (Thurlow and Poff, 2013). Holtgraves (2022: 6) has questioned how ‘good people are at communicating emotions’ in these digital contexts, without ‘access to facial expressions or voice’.
It might be argued that text communication compensates for this in other ways, via alternative cues ‘such as emoticons, emojis, letter repetition (e.g. sooo), abbreviations, intentional misspellings, nonstandard capitalization, and nonstandard use of punctuation’ (Houghton et al., 2018: 112), or other forms of ‘textese’ (Kemp, 2019: 151). Cues of this nature often purport to replicate the ‘pause fillers, expressions of emotion, and even representations of facial expression’ that characterise a spoken exchange (Kemp, 2019: 157). However, these unique features of text communication may be even more susceptible to divergent interpretation than ‘conventional’ words and written expression.
There is an extensive body of literature, spanning semiotics, socio-linguistics, discourse and pragmatics, that recognises that the meaning of ‘textese’, emojis and other forms of digital communication is not self-evident or universal (Kemp, 2019; Pei and Cheng, 2022; Wagner et al., 2020). Cultural context, age and gender are all important to the interpretation of digital communication (Chen et al., 2024). A person’s style of text communication may also vary between conversation partners (Adams and Miles, 2023).
The process of writing a text message may be a type of personal diarising, ‘interior monologue’, ‘self-talk’ or ‘inner speech’ (Alderson-Day and Fernyhough, 2015) – especially where the message is deleted before being sent, but also, in some instances where it is shared with another person. Doubt, uncertainty or hesitancy may be entirely explicable in this context, but take on whole new meanings when transformed into a documentary record of words on a page, particularly for court purposes.
Spontaneity, speed and limited pre-send review are also characteristics of the circumstances in which many text messages are produced, raising further questions about their accuracy and reliability. Given text messages are often written quickly, and/or typed whilst also doing something else, it is not surprising that ‘mistakes occur with some regularity’ (McSweeney, 2018: 131). Coupled with this is the role of autocorrect, where what you intend to type is not always what appears on the screen (McSweeney, 2018: 112).
Punctuation (or lack thereof) in text messages can have different meanings, as can abbreviations. For example, ‘lol’ can mean ‘laugh out loud’, but can also be used to soften a message (McSweeney, 2018: 6). Conversely, the use of a period at the end of a text message can be interpreted as an indication of insincerity from the sender (Gunraj et al., 2016).
Every time a text message is written the author is creating a reality. And every time a text is read – whether the reader is the original intended recipient, or a participant in a trial where the text is admitted as evidence – meaning and intention is being assigned to the words and symbols contained in the message. Early linguistic and semiotic theory recognised that language is comprised of ‘signs’ that can be broken down into signifier and signified, with meaning developed culturally (De Sassure, 1916). The ‘intention’ of the maker of a sign cannot govern its interpretation; the ‘readability’ of the mark is bound to its iterability (i.e. its repeatability in which every repetition is not self-same). The sender’s intention thus does not guarantee ‘uptake’ and can be interpreted in multiple ways (Derrida, 1993).
Text authors can also engage in ‘creativity and performativity’ (Sotillo, 2012). They may frame an event in a particular way to communicate a positive experience. A text message may attempt to ‘calm’ or resolve an unpleasant experience by re-producing it as something other than what it was.
Text messaging may be ‘synchronous’ (i.e. real time ‘conversation’), but it can also be characterised by ‘asynchronicity’ – that is, the recipient may read the text some time after it is composed or sent. Keane and Hammond (2024: 41) have noted that this ‘reduces corrective feedback, making the medium susceptible to misunderstanding’.
The cumulative effect of these factors is that text messages are prone to miscommunication, including as to affect – given difficulties inferring tone over text (Kelly and Miller-Ott, 2018).
Of course, disputes over meaning and divergent interpretations can occur in relation to all forms of (oral and written) communication, but they are more common in the case of text message exchanges – given their unique and dynamic characteristics, and noting that in most cases they were never imagined or intended by the authors to constitute a formal documentary record. In a criminal trial a great deal is at stake, and so the question of what conventions of interpretation can and should be applied to digital communications takes on a greater significance. In the context of the concerns of this article, we draw attention to the potential of the absence of consensus to create opportunities for ‘partisan’ interpretations – such as those that support a defence position that the complainant’s trial assertion that she did not consent is a lie (Craig, 2026).
The rape trial context
Text message and other digital communication evidence may give rise to a range of evidentiary issues in criminal trials, including questions of authenticity (i.e. who really authored/sent the message?). In this article, however, we are primarily interested in how transcripts of text messages or other social media communications can be used to challenge the Crown case, including by perpetuating rape myths. As we discuss in Part III, the most common rape myths engaged via digital communications evidence include: flirtation as a basis for inferred consent; equivocal language as suggestive of fabrication; and contemporaneous texts used as a basis for suggesting inconsistency in later accounts (Powell, 2015).
Digital communications evidence is not only relied on by the defence. It can form part of the Crown case, especially where it ‘corroborates’ or ‘supports’ the complainant’s account and/or contains what may be regarded as admissions by the accused (Boux and Daum, 2015; Ramirez and Denault, 2025). However, in such situations, the defence may engage the very same messages, interpreted differently, for contrary purposes. Wilson-Kovacs et al. (2023: 242) found that defence lawyers were sometimes able to rely on the same messages used to support the Crown case by ‘refut[ing] the prosecution’s interpretation by reframing the content of the messages, elucidating their context and providing additional information’.
Daly notes that given the lengthy ‘digital trail’ that most people leave, and the assumed value and relevance of digital communication evidence (especially in the context of rape trials where evidence that is considered ‘objective’ may be limited), investigations can become very intrusive, including ‘fishing expeditions’ that seek to discover information about the complainant that might be regarded as undermining their credibility (Daly, 2022b). This can be both re-traumatising for the complainant and unjust where it facilitates the engagement of rape myths and stereotypes. Of course, in some scenarios, there may be a real question about the relevance (and general admissibility) of the digital content in question. For example, in theory, a photograph on Facebook of a complainant in what might be said to be a sexually provocative pose should not be relied on to suggest the complainant therefore consented to sexual intercourse with the accused on the occasion in question (McDonald, 2020: 185). However, there is considerable evidence that in rape trials – sexual reputation and experience evidence aside (ALRC, 2025: 382–387) – the defence is afforded significant latitude in adducing evidence that is said to be ‘relevant’ to the question of consent and/or the complainant’s credibility (Quilter and McNamara, 2023: 20).
Hlavka and Mulla (2018) have drawn attention to the importance of how text messages are ‘animated’ in the context of a criminal trial, highlighting the influential role played by prosecutors and defence counsel in ‘transforming them from written to spoken form’ which ‘impacts their reception’ (2018: 406). For example, they can be read out in a soft monotone voice, with aggression, with anger, with alarm, or with a ‘sassy, sharp tone’ (Hlavka and Mulla, 2018: 424, 427, 429). Most importantly, records of text messages are ‘highly interpretable documents that can be strategically animated by a variety of individuals to address questions of collective, contextual, and consequential credibility’ (Hlavka and Mulla, 2018: 433).
The use of text messages and social media evidence in trials
We recently completed qualitative studies of transcripts from 33 rape trials finalised between 2013 and 2020 in the County Court of Victoria, and 75 sexual offence trials finalised in the NSW District Court between 2014 and 2020. Both studies had their origin in a national study of intoxication evidence in rape trials, 1 but ultimately expanded to consider a range of trial features, including the continuing operation of problematic rape myths such as expectations of verbal or physical resistance, immediate complaint and consistency in accounts (Quilter et al., 2023a, 2023b; Quilter, McNamara, Porter and Croskery-Hewitt, 2023; Quilter and McNamara, 2023, 2026). In both jurisdictions, we set out to identify a non-representative purposive sample. This was achieved by a variety of means including reviewing publicly available appellate decisions and liaison with multiple agencies. 2 Relevantly, trials were selected without any knowledge of whether they featured digital communications evidence. In 52 of the 108 trials (48%) the accused was convicted on at least one sexual offence charge.
Trial transcripts were de-identified in accordance with conditions of ethics approval. De-identified trial transcripts were uploaded into NVivo (version 12 plus) and manually coded by one of the authors. 3 Coding was deductive using a codebook that consisted of a pre-defined set of nodes and sub-nodes based on the aims of the Victorian and NSW studies.
While there are some variations across the Australian federation, most states and territories, including Victoria (Evidence Act 2008 (Vic)) and NSW (Evidence Act 1995 (NSW)) have adopted the Uniform Evidence Law (Odgers, 2025), which means the rules governing the sorts of evidence that feature in criminal trials are similar across the country.
Although our total dataset was relatively small (n = 108), and non-representative, we believe it provides a foundation for asserting that digital communications are, these days, a common feature of rape trials. 67% of the NSW trials and 64% of the Victorian trials we analysed featured digital communications evidence. These frequencies are to be expected given that, contrary to the myth that most sexual violence is perpetrated by strangers, a significant portion of rapes are perpetrated by someone who knows the victim (ALRC, 2025: 93; Australian Bureau of Statistics (ABS), 2023), and this means it is likely that the complainant and the defendant will have communicated by digital means given the ubiquity of mobile phone and social media technologies. In the trials we analysed, digital communication evidence came from a variety of sources including messaging platforms (SMS; iMessage; Facebook Messenger; WeChat; WhatsApp), social media platforms with integrated messaging features (Snapchat; Instagram; TikTok) and dating apps with messaging functions (Tinder; Hinge; Bumble; and Plenty of Fish).
As anticipated, in some trials text or other digital communications evidence (whether authored by the complainant or the accused) was adduced by the prosecution to support the Crown case (and the complainant’s allegation). However, consistent with the primary concern of this article, our focus here is on how evidence of this sort was engaged by the defence to advance the contention that the sexual activity in question was consensual, or undermine the complainant’s reliability and/or credibility.
Before we turn to our findings, we highlight a recurring theme across the trials we analysed: evidence in the form of records of digital communications appear to have a particular allure in rape trials, given that offending usually occurs in private, between people known to each other (ABS, 2023), and rarely in the presence of other witnesses. Records of text messages and social media communications promise a tangible and reliable window into what ‘really’ happened. However, as explained in Part II, there are dangers in treating text messages as ‘accurate’ documentary evidence and as sources that can be read in the same way as more familiar texts in the courtroom – such as police statements and records of interview. Reading evidence of text messages divorced from the context of their authorship or production, and with insufficient attention to the fragmented and often contradictory way that texts ‘explain’ what has occurred, increases the risk that the author will be accused of inconsistency and fabrication.
The general point is illustrated by events in one of the trials we analysed. The trial judge ruled that the jury should be given a transcript of the accused’s police interview (formally, the Electronically Recorded Interview of a Suspected Person or ‘ERISP’). This is not a routine practice, but the judge reasoned that it was only fair that the jury should have access to a record of the accused’s version of events because it would have access to the complainant’s ‘written version’ – by which the judge meant records of a series of text messages between the complainant, the accused and other friends. The Crown Prosecutor (rightly, it seems to us) queried this characterisation of the text messages as akin to a statement 4 :
I think [the jury] should have the opportunity to refer to his account very quickly and briefly in a way that might suit them.
Certainly, but they don’t have the complainant’s version.
Yes, they do. They have the complainant’s version via the text messages. It’s full of complaints by her about what he did, in writing, in a written form. I just think it’s desirable that the natural tendency of people to pay regard to a written record should be counterbalanced, when there is one available, of what he said to the police officers.
It strikes us that to treat a series of text messages as equivalent to a statement narrating the complainant’s version of events not only divorces the texts from the circumstances of their production but also ignores the unique features of text authoring and, potentially, the personal text-writing style of the complainant. We have begun the presentation of our transcript analysis findings with this example because, although it featured an atypical ruling, it powerfully illustrates a recurring feature of how digital communications are engaged in trials: with insufficient attention to the unique characteristics of texts as a ‘genre’ and to personal modes of expression. It is this tendency which enlarges the potential for text and social media messages to be deployed in ways that amplify rape myths.
The balance of Part III is organised around two related features of how digital communication evidence was engaged in the trials we examined. The first section provides examples and analysis of how such evidence provides ‘new’ or unique touchstones for lines of credibility and reliability attacks on complainants. The second section discusses and illustrates how ‘classic’ rape myths can be animated through digital communication evidence. These two categories are not mutually exclusive. During the course of a given trial, both strategies could be engaged to reinforce each other and support narratives of complainant consent and fabrication.
Unique methods for undermining complainant reliability and credibility
Although the tendency to essentialise rape trials as ‘word on word’ cases can elide the diversity of evidence types that can and do feature in many trials (VLRC, 2021: [19.14]), it is certainly true that juries are frequently required to evaluate two competing accounts of what occurred. This means that the standard criminal trial practice of challenging the reliability and credibility of a witness in cross-examination is intensified in rape trials when the complainant is the witness. Indeed, much of the criticism of rape trials over the years (e.g. Cossins, 2020: Ch 8) has focused on the way the alleged victim of sexual violence becomes the primary focus of rigorous questioning which challenges their reliability and credibility, these being important considerations under evidence law (IMM v The Queen (2016) 257 CLR 300). In our analysis of Victorian and NSW trial transcripts we found that the admission of evidence of text messages and other digital communications provides new strategies for doing so. We have organised our findings around three observed techniques regarding: the interpretation of textese; the treatment of message content as a ‘true’ record of the complainant’s state of mind; and the conflation of equivocal language with lying.
Misreading textese and attributing ‘meaning’
In some trials it was the forms of ‘textese’ that provided the defence with opportunities for undermining complainant credibility. We observed questioning that was predicated on a literal and universally understood meaning of message features like emojis (e.g. kissing face), texting abbreviations (e.g. LOL, xx) and texting punctuation. These ascribed meanings were engaged to convey the impression that the complainant sexually desired the accused (see also McDonald, 2020: 94–99). Although such assumed meanings may be at odds with the flippant or idiosyncratic ways that emojis and text short-hands are often used, or the subjective meaning assigned by the individual author, they can align with rape myth narratives that, for example, infer consent or suggest that women lie about rape (Minter et al., 2021).
For example, in one trial the complainant was questioned about ending her text messages to the accused with an ‘x’ inferring that she wanted to kiss the accused:
When those messages end at x, you take them to mean kiss.
I don’t but sure.
Well, you would know just--
I honestly just do it to a lot of people, it’s not necessarily, like, you know I’m extremely fond of them it’s just something that I do, but I do see how it can come across as that way.
In another trial, a kissing emoji sent by the complainant to the accused was said to be an ‘expression of love’ by her. When the complainant rejected that meaning, she was characterised as a liar:
So you were lying about that expression of love to him, is that right?
That’s an emoji. I wasn’t - I was just writing it next to what I said and - I wasn’t going to kiss him when he got near me. Like, it’s an emoji, I just used the emoji when I was talking to him.
In some cases, the sharing of Facebook posts after the alleged rape was said to be inconsistent with the suggestion that a rape had occurred. For example, in one case, ‘positive’ posts by the complainant on the accused’s Facebook wall – including the use of love heart and crown emojis – were construed as an indication that she loved the accused (which, it was implied, she would not do if he had sexually assaulted her as alleged). The complainant attempted to explain that, rather than being an expression of her feelings towards the accused, her Facebook post was designed to assist the ongoing relationship between the accused and their children while he was in custody:
. . . [Y]ou posted that in order to publicly demonstrate your love for him?
That’s got nothing to do with me, that’s got to do with the kids, that’s - nothing in there says I’m missing him, and stay strong for me, it’s our beautiful babies, instead of between me and him, like our babies are like the main priority and that had nothing to do with me this post. And after this day was a day that he had a problem in gaol and this was only posted for him, like for the kids, not - nothing to do with me.
This example illustrates a phenomenon that we observed many times in rape trials featuring evidence of complainant-authored digital communications. The ‘text’ (of the text or other message) is available for interpretation, affording the defence an opportunity to attempt to subvert the stated intent of the author and appropriate the words or symbols used to represent a ‘true’ meaning for the jury’s consumption.
Texts as ‘truth’
The rape myth of the ‘lying woman’ has a long history (Estrich, 1987; Quilter, 2015) and still features prominently in contemporary trials (Quilter et al., 2023a; Quilter and McNamara, 2023). We observed that the particularities of text and digital communications evidence can provide defence counsel with new forms of pursuing the trope of women who lie. In one trial, the punctuation of texting was appropriated to undercut the complainant’s reported feelings and infer a narrative that she had fabricated the allegation of sexual violence. It was not what she texted but how she texted. The complainant used capital letters in a text which was then relied on to suggest that the complainant had made deliberate choices and taken care in composing her texts. This was said to be inconsistent with her claim that she was in shock at the time:
You still had the wherewithal, though, to capitalise . . . and say, “I fucked YP.”
Yes.
You have to press a certain button on your phone to make it use capitals, don’t you.
Yeah, you have to click a button once.
Another observed cross-examination technique to suggest complainant dishonesty and fabrication was questioning about deleted texts. Deleting messages was suggested to be both contrary to how a ‘true’ victim would act, and indicative of an attempt to cover-up consensual sex.
You told us that you deleted the messages from [the accused]?
Yes.
You deleted them before the police arrived? . . .
Was your first thought that if the police are going to get involved I don’t want the police to see the messages that have gone between . . .
The first thing that I told the police when they got there was we had been texting. . . .
You told them about three texts.
Those were the texts that I could remember. . . .
Were you surprised when you saw that the texts that you had deleted between you and [the accused] had emerged again?
I knew the police were going to recover them.
Did you?
Yes, I did.
When were you--
Like I told the detective, it was a mistake that I deleted them. At the time, I just wanted to remove every thought of him.
In this sequence the defence attempts to supplant the complainant’s explanation for her actions with an account that damages her credibility and invites the jury to consider her a liar.
Seizing on equivocality
Another technique we observed to suggest fabrication was to seize on the language of text messages that described the alleged rape in terms that were cautious, equivocal or uncertain. These features may be explicable in multiple ways – text messages are often written with speed, the subject matter is traumatic, disclosure can feel risky, and young women in particular can often use ‘lexical hedges’, including qualified and indefinite phrasing, and presentation of statements as questions (Ahmed, 2021; Lakoff, 2004: 104). This can be particularly acute in the context of gendered violence victimisation where ‘uncertainty, minimization, and self-blame’ are common features of trauma responses (Brown, 2013; McKenzie-Mohr and Lafrance, 2011), and where hedging may be perceived as a safer language of disclosure (Jordan, 2004).
Despite this knowledge, during cross-examination, text messages that contained ‘tentative’ language were likely to be portrayed as connoting doubt or uncertainty. In the following example, the complainant was questioned on the contents of a post-event message she sent to a work colleague/friend:
You sent her a text, can I suggest, which said, “I think I was raped”?
Yes.
You didn’t say to her, “I was raped”?
Yes.
You were saying that there was some uncertainty in your mind about what it was that had happened?
I was confused. I was - --
And indeed – I’m sorry?
I was still intoxicated at the time. I was confused and still trying to work out what had happened. I was trying to piece together in my mind how I got there.
In another trial, the complainant’s use (in post-event text messages to a friend) of the colloquial qualifier ‘kind of’ and her self-description as ‘confused’ was highlighted as a foundation for disputing the veracity of her allegation:
If we go to the beginning of page 2, you say, “I’m okay for not, just really fucking confused” and then you correct the “not” to “now”. Do you see that?
Yes.
So that should read and correct me if I’m wrong, “I’m okay for now, just really fucking confused”?
Yes.
The reason you didn’t want [the friend] to come over and call the police is because you weren’t really sure as to what had occurred in [the accused]’s car, is that right?
I disagree.
That is the reason why you said in your text message to [the friend] that, “I’m okay for now, just really fucking confused”?
I disagree.
That is the reason you also said to [the friend], “I kind of got raped”?
I also disagree.
It is because you weren’t sure whether in fact, firstly, you had sexual intercourse with him?
I completely disagree.
In such defence ‘readings’ of words used in digital communications, there is no regard for the unique characteristics of text-messaging and the linguistic styles of young people. Tentative, colloquial and ‘incomplete’ language are common features of digital communications, but when used by the complainant in post-event text messages, these attributes can be eclipsed, and a ‘truth’ derived without regard for other possible explanations for equivocation. Of course, it is not the responsibility of defence counsel to introduce the nuance that is often missing in these exchanges. Sometimes, in the trials we analysed, complainants were able to powerfully account for their use of cautious, equivocal or uncertain language in their text messages (noting the significant barriers that adversarial cross-examination presents to the complainant’s ‘voice’ being heard (Quilter and McNamara, 2023)). Overall, however, we saw little evidence that juries are offered guidance on the unique characteristics of text and social media messaging, and how these might be relevant to interpreting words or images communicated by a potentially traumatised victim of sexual violence in the immediate aftermath of the event.
Old myths; New techniques
We noted in the Introduction to this article that removing rape myths from the courtroom – or at least reducing their prevalence and impact – has been an abiding objective of decades of law reform. Our analysis of contemporary rape trial transcripts provides little evidence of success. In fact, we observed that records of digital communications are providing new opportunities to animate and increase the salience of rape myths. Here we illustrate our finding with reference to three entrenched rape myths: flirtation as consent; inconsistency as lying; and delayed (or ‘incomplete’) complaint as false complaint.
Inferred consent
Evidence of pre-event digital communications between the complainant and the accused which were characterised as ‘flirtatious’ (including ‘sexting’, photo exchange and text messages) featured in several of the trials we observed. The admission of, and cross-examination on, such evidence takes advantage of the expansive conception of relevant evidence in Australia (Evidence Act 1995 (NSW) s 55; Evidence Act 2008 (Vic) s 55. See, for example, R v Le [2000] NSWCCA 49, [19]; DPP v Paulino [2017] VSCA 38, [19]). Evidence of this type is not typically regarded as subject to the special rules governing the admissibility of sexual experience evidence (e.g. Criminal Procedure Act 1986 (NSW) s 294CB; Criminal Procedure Act 2009 (Vic) pt 8.2 div 2; ALRC, 2025: 382–387). Defence counsel engaged digital communications evidence of this sort as a basis for inferring that it was likely that the complainant consented to the later sexual acts which are the subject of charges. For example:
Earlier in your evidence, you described this kind of exchange you had with [the accused] on Facebook messenger as ‘flirting’?
Yes.
. . .
Isn’t it true that these messages on 19 December, go way past flirting?
That is true, but because I wanted him at one time, does not mean I wanted him at another and I had made sure to tell him I did not want him on January 8 of 2016.
I take it from what you’ve just said there, that these series of messages, indicated at that time 19 December 2015, that you wanted [the accused]?
I was in a very sexual mood that night, yes.
This is true isn’t it, that this exchange on 19 December is very explicit detailed sexual messages, isn’t it?
That’s true. . . .
They are very explicit sexual detailed messages about what you were imagining doing to [the accused], correct?
Correct.
They were very explicit detailed sexual messages entirely consensual, correct?
Yes, those messages were consensual.
In this way, the presentation of the complainant’s messages operates to convey the implication that the alleged rape (which occurred almost 3 weeks later) was in fact a consensual enactment of the intentions communicated in the prior messages.
Another trial illustrates the wide temporal parameters over which the defence can be permitted to roam when it comes to suggestions of pre-event flirtation. The complainant was questioned over a number of Facebook Messenger exchanges she shared with the accused months before the alleged rape. Cross-examination questions include a running narrative suggestive of romantic and sexual interest displayed by the complainant towards the accused, built around words and symbols used in messages.
We also observed instances where text messages were appropriated into counsel’s closing submissions to weave a narrative of consent – all the more powerfully when the words used are those of the complainant. As noted above in Part II, the manner of such submissions (including sequencing and tone) ‘animate’ the texts with the inflection preferred by defence counsel (see also Benton-Greig, 2025). The following extract is an example of where a number of different messages from an exchange between the complainant and the accused are woven by defence counsel into an ostensibly coherent narrative of consensual sex (subsequently regretted by the complainant): “I wish earlier didn’t happen because now I hate myself”. “No need to hate yourself”. “I don’t know if I wanted it or if I just gave it to you because you did. I feel like a stupid worthless whore”. “You aren’t [complainant’s name]”. “Easy for you to say”. “I’m sorry, it’s why I didn’t want you over tonight, I was scared all of this was going to happen” I told you at the outset that of the three particular facets of the evidence of this case I would invite you to look carefully at the text messages, particularly one text message will be crucial in your determination as to whether you’re satisfied beyond reasonable doubt that [the complainant] did not consent to sex with [the accused] that day. The words of the text messages I have just read out to you I would suggest to you are not the words of a young woman who is writing to her rapist. They are the words, you may well think, of a young woman confused and upset writing to the man she’s just had sex with and regretted it. “I wish earlier didn’t happen”. “I don’t know if I wanted it or if I just gave it to you because you did”. “I feel like a stupid worthless whore”.
In this way, a defence characterisation of events that might otherwise be regarded as speculative, is rendered more plausible because it is built on the foundation of the objectively verifiable words used by the complainant in text messages. However, the narrative is not the one advanced by the complainant in her trial evidence, but one constructed by the defence on the basis of the admitted digital communications evidence. As Craig (2026: 12) has observed, such practices are entirely insensitive to the unique characteristics of text messages as modes of communication: Digital sexual communications are frequently open to interpretation; and only rarely can they reasonably be said to reveal a reliable inference about a complainant’s actual sexual intentions for the future, let alone a reliable inference connecting her state of mind at the time she sent them to her state of mind regarding consent at the time of the alleged offence.
Inconsistency
The attempt to find ‘inconsistencies’ in a witness’ evidence is a common technique used in criminal trials to attack a witness’ credibility. It persists despite the fact that it is well recognised that victims of rape may recount events differently at different times and to different audiences, and that such inconsistencies or gaps are not necessarily indicative of fabrication or unreliability (McDonald, 2020; Quilter et al., 2023a: 337–338). Such knowledge is increasingly reflected in ‘educative’ statutory jury directions (e.g. Criminal Procedure Act 1986 (NSW) s 293A; Jury Directions Act 2015 (Vic) s 54D), but these do not prohibit such lines of cross-examination. Multiple reference points for suggesting inconsistency can be engaged – including accounts provided to friends, medical officers, to the police (during first report or formal statement), to a committal hearing etc. Our analysis of NSW and Victorian trial transcripts shows that records of text messages and social media exchanges can provide yet another touchstone for asserting that the complainant has been inconsistent.
In the following example, defence counsel drew attention to ‘differences’ between the complainant’s description of events in text messages shortly thereafter with the account contained in her report to police:
So you start off saying in that, “You’re in my room. He’s trying to cuddle and things”, right?
Yep.
Then you message [a friend] to - you want him out?
Yes.
. . . you say the message to [a friend] was, “Could you please get him out of my room.” She said okay and “I said, ‘I might have a friend over.’ But I didn’t. I just didn’t want him in my room”?
Yep.
“So then he wouldn’t leave, so I had to try and get my other friend’s house - get to my other friend’s house, but the taxi wouldn’t take me so I had to stay there”?
Yes.
All right. What I’m saying is there’s - your language there in your interview with police is a little bit stronger than the actual text message, isn’t it? You’re saying, “Get this” - I’ll quote it again to you. “Could you please get him out of my room.” She said okay. Whereas the text message says, “My mate is coming over. Can this boy leave my room?” And then you add, “I feel bad, but like I don’t know him.” Do you see the distinction there?
I do, but I, I, I don’t know. I just assumed it was kinda the same thing.
On this occasion, it seems, the implication was that the complainant’s original (qualified and somewhat muted) text account of events was the ‘truth’ and that her police interview account was exaggerated and untrue.
Complainants are also challenged on differences between their courtroom evidence and past text messages. In the following example, cross-examination focuses on asserted differences between her testimony on her emotional reaction to the alleged rape, and sentiments expressed in a post-event text to the accused:
I was asking about that message which says, “Because I can’t vocally express my feelings, if I talk I’m either going to cry or beat you up and throw you out of my house”. I was asking you yesterday, you might recall, that saying, “If I talk I’m either going to cry,” suggests that at that time you were not crying?
I wasn’t crying hysterically at that time, no.
You told us you were crying at that stage but with little tears I think is what you said?
Yes, that’s correct.
Defence counsel invites a literal reading of the words of the text message to suggest an inconsistency between the emotional response ‘recorded’ there (i.e. not crying) and the complainant’s oral evidence (i.e. crying but with ‘little tears’). The text message is engaged as the ‘true’ record of her emotional state to suggest that the complainant was not in fact distressed at the time – or certainly not as much as she would have been if the sexual activity referred to had been non-consensual. Our interpretation of this exchange is that it involves combining an inconsistency (i.e. lying) suggestion with another (discredited) rape myth: that demonstrable distress is a hallmark of a ‘real rape’ (Law Commission (UK), 2023: 42; see also Ramirez and Denault, 2025: 17).
Delay and ‘incomplete’ complaint
Asserting that a complainant failed to complain immediately (i.e. ‘delayed’ complaint) is a deeply embedded aspect of rape trial practice – part of a set of expectations about how a ‘true’ victim will respond (Quilter et al., 2023b). These expectations persist in trials despite a large body of evidence that it is common for complainants to ‘delay’ – and that this does not suggest falsity – and the availability of a corrective jury direction (e.g. Criminal Procedure Act 1986 (NSW) s 294; Jury Directions Act 2015 (Vic) s 52).
We observed instances of text message exchanges being relied on to suggest the complainant had not taken the opportunity afforded by text message technology to make an immediate complaint. For example:
You could have phoned somebody at that point, couldn’t you?
Ah, I have no idea if I had any credit, but I probably could’ve, yeah.
You certainly could’ve messaged somebody, yes?
I could’ve, yeah. I think so.
The expectation of immediate complaint is not simply a temporal one: the complaint must be both swift and ‘perfect’ – including in terminology, detail and completeness. In the following example, the believability of the complainant’s allegation (and evidence in court) is challenged on the basis that during a post-event text exchange with a friend she did not immediately and expressly report a ‘rape’:
[The friend] . . . asks you, “[name redacted], did he try and rape you,” and you said, “My body hurts. I’m so scared.” Why didn’t you say to [the friend] when he asked you, “What did he do,” why didn’t you say what he did?
Because [the friend] already knew.
He couldn’t have because then he asked you . . . , “[name redacted], did he try and rape you?”
To confirm his assumptions, yes.
But why didn’t you say, “Yes, he did”?
Because I have very bad - how do I explain it? I have very bad thoughts around using those words. I don’t like to use them and I’ll avoid using them at all costs. [The friend] knew what he did. I didn’t need to tell him. I didn’t need to say the words. I didn’t need to speak of it.
We cannot discern from a transcript analysis study what the jury makes of such assertions, including whether they might be sympathetic to the complainant’s explanation that she was reluctant to use or embrace the word ‘rape’. However, it is clear that the assumption that underlines this sequence of cross-examination is a variation of the traditional expectation that a victim of ‘real rape’ will make an immediate and full report to police. In this case, the defence effectively asserts that if the complainant was a ‘true’ victim she would have immediately, expressly and precisely disclosed that she had been raped to her friend in the text messages. The defence is attempting to lay a foundation for a particular conclusion: the complainant did not complain of ‘rape’ because no rape occurred, and she is lying now when she says that she was raped. The assumed ease of ‘reporting’ via text might incline a jury to take seriously the defence suggestion that her failure to do something so ‘simple’ (as texting ‘rape’ to her friend) places her credibility and reliability in doubt, and to entertain the defence narrative that the complainant is lying about consensual sex subsequently regretted.
In another trial it was the judge who engaged the expectation of immediate and express ‘report-by-text’. The complainant was being cross-examined about texts she sent to a friend around the time of the alleged rape, when the trial judge interrupted:
Mr [defence counsel], do you mind if I ask another question about these text messages?
Can I just ask you a question. In that two minutes of texting--
Yes.
--before you had the phone taken off you, there was no penile vaginal intercourse?
No, not at that time, no.
Had he put his fingers in your vagina?
I’m not sure.
He had told you that he was going to have sex with you whether you liked it or not.
Yes.
Can I just ask you why you didn’t text, “Help, I’m being raped.”
Because I was in shock, so I didn’t know whether that’s what I say, or if it was happening, or if it was going to happen. I didn’t know what was going to happen during that - those next five minutes.
In addition to questioning complainants on an asserted failure to use their phones to complain immediately and perfectly, in several cases, we observed defence counsel weaving evidence about digital communications into a closing submission narrative. For example, in a trial previously discussed, defence counsel told the jury to ‘Just look at the text messages. . . . She wasn’t sure whether she had been sexually assaulted, because if she had been sexually assaulted she would have said I got raped. She wouldn’t have said I kind of got raped . . .’.
Our analysis of transcripts suggests that while there is nothing new about attempts to raise doubt as to the complainant’s bona fides because they failed to conform to expectations of how a ‘genuine’ victim would respond, evidence of digital communications – both what is said via text and what is not – can intensify this problematic practice. We have tried to highlight not simply that text message evidence is engaged in this way, but that the practice occurs without any guidance to jurors about whether the proffered interpretations are a fair or accurate rendering of the meaning of the digital communications evidence in question. Moreover, the defence practices described in Part III, both in cross-examination and closing submissions, tend to reinforce the very rape myths that decades of legislative reforms have attempted to address.
In contrast to, for example, an unrecorded face-to-face or phone conversation between the accused and the complainant that occurred before or after the alleged rape, a documented series of texts or Facebook Messenger exchanges can be portrayed as indisputably accurate, and a record that can be relied on as ‘authentic’ and ‘unfiltered’. This evidence can be seen as offering a ‘truth’ that is challenging to rebut. That ‘truth’ can be presented as self-evident, which belies the animating role of counsel during cross-examination and closing. In fact, both the ‘old’ and ‘new’ defence deployments of digital communication evidence we have illuminated in Part III – but particularly the latter – tend to be underpinned by ‘free-wheeling’ court-room interpretations (‘animations’) of the meaning of the contents of text messages and other digital communications that are not necessarily consistent with expert knowledge (from a variety of disciplines) on the nature and use of digital communications.
Conclusion
It is unsurprising that evidence of text messages, Facebook posts and other forms of digital communication feature prominently in contemporary rape trials, and that both sides take advantage of what Ramirez and Denault (2025: 3) refer as the ‘affordances of social media evidence’. The availability of such evidence follows from the ubiquity of smart phones and the reach of digital communication technologies, and the reality that in most instances of sexual offending the perpetrator and the victim are known to each other, and thereby able to communicate (and produce records of communication). Hard copy records of text messages have the allure of ‘solid’ documentary evidence – in a context where the evidence in rape trials is often seen as ‘impoverished’ (i.e. ‘he said/she said’, and little else). In this article we have presented compelling proof, drawn from qualitative analysis of transcripts from 108 Australian sexual offences trials, that digital communications evidence is frequently being engaged to enliven rape myths – at a time when active steps are being taken to neutralise their impact (ALRC, 2025; Law Commission (UK), 2025; Quilter and McNamara, 2026).
It is not our position that such evidence should be carte blanche excluded (although we do think there should be greater scrutiny of the purposes for which a party seeks to admit text message evidence (Craig, 2026)). Our central argument is that, given all that we know about the idiosyncrasies of digital communications, the trial practice of animating text messages into records of ‘truth’ risks increasing the justice gap experienced by many victim-survivors of sexual violence (Cossins, 2020; Temkin and Krahe, 2008). This is especially so when digital communications are used by the defence as a 21st century strategy to engage ancient, gendered rape myths. We note that there is no legislative or other prohibition on doing so. At a minimum, courts (and juries) should have the benefit of digital communications expertise, rather than being left to rely on the self-serving ‘interpretations’ of defence counsel. It is incumbent on prosecutors and judges to be proactive about identifying the need for such expert evidence. We note that the ALRC has recently encouraged greater use of expert evidence in sexual offence trials (ALRC, 2025: 257–264). The findings presented in this article suggest that the topics on which expertise guidance is sought should include digital communications and social media use.
Finally, the frequency with which digital communication evidence features in rape trials invites further consideration of whether the broad concept of relevance that currently governs the admissibility of evidence in criminal trials should be revisited. In our wider transcript analysis research on rape trials, we have noted that many of the questions asked of complainants during cross examination rely on a rape myth for the asserted relevance of the evidence (Quilter and McNamara, 2026). This general observation can also be made about questions regarding text messages and social media posts. Educative jury directions of the sort that have proliferated in Australia in recent years have a role to play (Quilter and McNamara, 2024), but they are not designed to prevent the entry of rape myths into the courtroom (Quilter and McNamara, 2026: Ch 9). Recognising that much care will need to be taken to preserve the right of accused persons to a fair trial, we conclude that the parameters of ‘relevant’ evidence may need to be recalibrated if the objective of reducing the prevalence and impact of rape myths and misconceptions is to be pursued to the fullest possible extent.
Footnotes
Ethical considerations
Approval for the collection and analysis of trial transcripts was granted by the University of Wollongong Human Research Ethics Committee (Approval 2020/376).
Funding
The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: From the Australian Research Council for a study titled ‘Intoxication Evidence in Rape Trials: A Double-Edged Sword?’ (DP200100101); and from the NSW Government’s Department of Communities and Justice for the study, ‘Evaluation of the experiences of complainants of adult sexual offences in NSW Criminal Courts’ (2021–2023).
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.