“This isn’t your father’s police force”: Digital evidence in sexual assault investigations

Abstract

Digital evidence, once regarded as existing only in a portion of criminal cases, in our digitized world commonly appears within all crime categories and is a factor in many (or arguably most) cases of sexual assault. In this article, we draw from 70 interviews with sex crime investigators from across Canada to demonstrate that the infusion of digital evidence into sexual assault investigations results in new opportunities and challenges for police and both negative and positive impacts on victims’ experiences within the criminal justice system. We show that while digital evidence certainly provides more opportunities for documenting the context and content of acts of sexual assault, police perceive this evidence as a double-edged sword that provides both more evidence and new challenges for police and victims. While officers express that digital evidence may provide more conclusive proof in the notoriously difficult pursuit of proving sexual assault charges, they are also concerned that this evidence provides new challenges for already overburdened sex crime units and makes cases more lengthy and invasive for victims. This article contributes to emerging research on the challenges of policing in the digital age and to the dearth of research on the potential and pitfalls of digital evidence in sexual assault investigations.

Keywords

Digital criminology digital evidence digital forensics policing sexual assault sexual violence

Introduction

Digital information increasingly acts as valuable evidence in cases of sexual violence (Carimico, Huynh, & Wells, 2016; Diss, 2013; Dodge, 2018; Hlavka & Mulla, 2018). For instance, text, email, or social media messages sent between the complainant and the accused before or after an alleged sexual assault, security camera footage or cellphone photographs/video providing context for an alleged sexual assault, or even cellphone video/photo documentation of the alleged assault occurring each document the context or content of criminal activity (Bluett-Boyd, Fileborn, Quadara, & Moore, 2013; Dodge, 2018; Powell, 2010; Powell & Henry, 2018). Digital evidence, once regarded as existing only in a portion of criminal cases, in our digitized world commonly appears within all crime categories (Arnes, 2018; Horsman, 2017; Scanlan, 2011; Yar, 2013) and—according to our interviewees—is a factor in many (arguably most) cases of sexual assault. The notoriously difficult investigative process for sexual assault cases and the well-documented negative impacts of these investigations on victims (Jordan, 2008; Randall, 2010) warrant a better understanding of the particular potential and pitfalls digital evidence creates for sex crimes investigations.

Due to the ubiquity of digital technology, our everyday actions and interactions now frequently leave a wake of digital information (e.g., text message conversations, GPS tracking, and internet search histories) (boyd, 2010), resulting in the infusion of digital evidence into many cases of sexual violence (Hlavka & Mulla, 2018; Powell & Henry, 2018). In consequence, a need for new investigative tools and strategies for police investigations emerges. While the need to digitize the policing of primarily “cyber” sex crimes such as online child pornography and online child luring is widely accepted (Powell & Henry, 2018; Scanlan, 2011), much less scholarly and policy attention is focused on the role of digital evidence in the investigation of acts of sexual assault.

Powell, Stratton, and Cameron (2018) assert in their theorization of digital criminology that digital technology has “had significant effects for everyday life and for everyday crimes” (Powell et al., 2018). While other advances in science and technology (e.g., DNA¹) have had substantial impacts on criminal investigations, digital technology’s ubiquity has changed the very fabric of our lives and, thus, our crimes (Powell et al., 2018). While theories of cybercrime (Chaikin, 2006; Clifford, 2006) have grappled with the specific challenges for policing crimes committed online or using computer technology, we now understand the need to assess digital technology’s impacts on all criminal investigations (Powell et al., 2018; Vincze, 2016; Yar, 2013). Thus, drawing from 70 semi-structured interviews and two focus groups conducted with sex crime investigators from across Canada, in this article we demonstrate the impact of digital evidence on the investigation of sexual assault.

We divide the article into three sections. First, we review the literature on the changing nature of evidence and policing in the digital age. We then describe the methodology for this study. In the final section, we analyze and discuss police perspectives on how the proliferation of digital evidence is changing investigative practices for sexual assault cases and impacting victims of sexual assault within the criminal justice system. Following the maxim “this isn’t your father’s police force anymore” provided by one of our participants, we demonstrate that the infusion of digital evidence into cases of sexual assault has had a dramatic impact on policing in this area. The influx of digital evidence in these cases provides both opportunities and challenges for sex crime investigators and both positive and negative impacts on victims of sexual assault within the criminal justice system—resulting in police perceiving this evidence as a “double-edged sword.” In this article, we contribute to emerging research on the challenges of policing in the digital age and to the dearth of research on the potential and pitfalls of digital evidence in (physical) sex crime investigations.

Digital evidence and the need for digital policing

The rise in digital evidence in police investigations stems from the increasing ubiquity of and access to digital and online technologies (such as smartphones) that have led many to live integrated online and offline lives (Powell et al., 2018). The extent to which we use technology to communicate and develop social networks (Baym, 2011) increases the possibility that a crime will involve some amount of digital evidence. Just as digital evidence has had a considerable impact on the practice of law (Dodge, 2018; Gottehrer, 2015; Kerr, 2005), it has also provided many new opportunities and challenges for police practices and investigations (BBC News, 2016; Brown, 2015; Yar, 2012; Yar, 2013b). Exemplifying this impact, participants at the 2014 Police Executive Research Forum discussed the importance of digital evidence for policing, with one attendee stating that digital evidence is now “as important as firearms, fingerprints, DNA” and that “more cases are being solved on digital evidence than anything else right now” (Goodison, Davis, & Jackson, 2015, p. 14). While CCTV, desktop computers, and other technologies have constituted forms of electronic/digital evidence over the past several decades, the more recent scale of digital technology’s accessibility and ubiquity (Yar, 2012) require police to revisit their responses and practices and to manage the increasing relevance of digital evidence in traditionally “offline” crimes such as sexual assault. The prevalence of digital technology (including the proliferation of social media use and text messaging) dramatically recalibrates the skills required of police during investigations. For instance, as demonstrated below, police in sex crime units are now regularly required to have the know-how to access a variety of social media sites and mobile applications to find and correctly document evidence of messages or images shared between victims and offenders.

Digital evidence includes “any digital data that contains reliable information that can support or refute a hypothesis of an incident of crime” (Arnes, 2018, p. 7; Casey, 2011; Gottehrer, 2015). Digital data are not only collected from computers, but are also obtained through the examination of various digital devices such as smartphones and digital cameras (Arnes, 2018; Chaikin, 2006). Digital evidence offers more opportunities for uncovering the details and context of an alleged crime (e.g., it is more common to find a “snapshot” of a criminal act in progress) yet also new challenges (e.g., finding and assessing large amounts of digital data) for policing and the criminal justice system more broadly (Dodge, 2018; Gottehrer, 2015; Kerr, 2005).

Although potentially very useful, knowledge and skills are required to collect, analyze, and store these various kinds of data from a plethora of digital sources and to ensure that the evidence is useful in charging and prosecuting offenders (Losavio et al., 2016). For example, digital forensic processes (i.e., systematic and scientific methods for the collection and preservation of data) are required to authenticate and preserve the integrity of digital data (Giordano, 2004; Irons & Lallie, 2014; Palmer, 2001; Tun, Price, Bandara, Yu, & Nuseibeh, 2016). Digital forensics is imperative because the evidentiary principles of the courts place certain limitations on what sorts of digital evidence can be accepted into proceedings (Beebe, 2009). The skills required to accurately and serviceably access and document digital evidence have resulted in the creation of dedicated units and the training of digital forensic specialists; however, the availability of these resources varies across jurisdictions and specialized units and officers are often overburdened by the amount of cases that now involve digital evidence (Burruss, Holt, & Wall-Parker, 2018). Without the full support of police organizations, the capacity of digital evidence to improve investigations and help solve crimes cannot be fully realized.

Digital evidence certainly provides more information in many sexual assault cases, thus providing potential avenues for documenting these notoriously difficult to prove crimes. However, the retrieval, verification, and translation of information from digital devices can be costly, time-consuming, and resource-intensive (Arnes, 2018). Police resources are not always increasing to account for the lengthy time lines required to sift through “electronic haystacks” for potential evidence (Chaikin, 2006) and to seek cooperation with social media sites and internet/cellphone providers, the need for more regular training to account for changes in digital technology, the need for up-to-date equipment, and the need for increased staffing in digital forensics units (Chaikin, 2006; Gogolin, 2010; Irons & Lallie, 2014; Goodison et al., 2015; Powell & Henry, 2018; Tun et al., 2016). In addition to resource shortcomings, cultural shortcomings exist due to what some perceive as a resistance to digital evidence by “old-timers who are not technical” and who are not accepting the pivotal role that digital evidence now plays for “policing in the 21st century” (Goodison et al., 2015, p. 15). The scant research at the intersection of digital evidence, policing, and sexual violence demonstrates that police responding to sexual violence face particular struggles in handling the ever-increasing pool of digital information in these cases and adjusting to the rapid changes that it engenders in their profession (Powell & Henry, 2018). As such, and in light of the below demonstrated ubiquity of digital evidence in sex assault cases, understanding how police perceive the challenges and opportunities of digital evidence in these cases is necessary.

Method

This article is part of a broader research study investigating how police respond to various types of sex crimes. We draw from case studies conducted from March 2014 to July 2016 with sex crime-related units in 10 police service organizations across Canada. A diversity of sex crime units are included in this study, including units responding to sex crimes committed against adults, children and youth, and units specifically dealing with the online sexual exploitation of children. The data were collected from four large cities (over 500,000 residents), three mid-sized cities (between 200,000 and 500,000 residents), and three small cities (less than 200,000 residents). Access to the participating police organizations was brokered through email and follow-up phone conversations with key gatekeepers to the respective organizations.²

We treat each police service organization as a distinct case that may have one or more sex crime units within their respective organization. Police organizations across Canada vary in the number of units they form to investigate and respond to sex crimes concerning children, youth, adults, and online child exploitation. The largest police service organization included in our study has eight different sex crime-related units and the smallest police service has only one. As the size of the police organization increases, the mandates of the individual sex crime units are narrower and specialized in relation to the type of victims they respond to. The sex crime units in our study also vary in the amount of technological support available to them. Each unit has access to at least one digital forensics specialist to access and analyze data on digital devices; however digital forensics specialists or units are often relied on by the entire police organization in that area. In addition to digital forensic specialists, some sex crime units have access to tech/cybercrime units they rely on to help with their everyday needs in terms of understanding and using digital and online technology in their investigations. When tech/cybercrime units are not in proximity to sex crime units, are nonexistent, or are overburdened with their own investigations, sex crime units make due by relying on tech-savvy officers in their own unit.

A total of 70 interviews and two focus groups were conducted with members of sex-crime related units in police organizations. One or more of the research team members conducted interviews with individual unit personnel on-site at the organization’s headquarters. In-depth interviews were conducted to allow for greater detail than a survey and for data to be obtained regarding how investigators interpret the impact of, for instance, digital evidence on sex crimes. Although the interviews were intentionally wide-ranging, a 42-item interview guide led the conversational path. Interviews were voice recorded and ranged in length from 30 to 150 minutes depending on the talkativeness of the participating officer. Interviews were transcribed verbatim and pseudonyms were assigned to all participants. Focus groups were also conducted with multiple members of sex crimes units within two large police service organizations. The focus groups were used to first understand the mandates of the individual sex crimes units in these large organizations. Subsequently, individual members of these units participated in interviews.

We used QSR NVivo qualitative research software to assist with the compilation, organization, and coding of the interview and focus group transcripts. Interview and focus group data were initially coded according to theoretical, process, and attribute codes predefined by the research team prior to data analysis. In the initial stages of the coding of the interview data, a significant number of additional themes emerged (Charmaz, 2006) and the research team met to discuss these themes and, through a process of codebook revision and recoding, reached consensus regarding meaning of the themes (Campbell, Quincy, Osserman, & Pedersen, 2013; Kurasaki, 2000). Over 80 themes emerged from the interview and focus group data. For this paper, we focus on the themes titled “digital evidence” and “challenges of occupation.”

Sex crime investigator perspectives on the impact of digital evidence

In this section, we discuss the key emergent themes regarding sex crime investigator perspectives on the impact of digital evidence on cases of sexual assault. Officers express that the ubiquity of digital evidence in sexual assault cases (due to the fact that victims and offenders in these cases almost always have a preexisting relationship that is somehow digitally documented) has led to multiple new challenges. These include backlogs created by a lack of staff to process large amounts of digital evidence (in already overburdened sex crime units), struggles to gain and keep up with required technological skills, and dealing with investigator and organizational resistance to the increasing role of digital technology in cases of sexual assault (wherein technological know-how has not traditionally been understood as a necessary investigative skill). These challenges led to assertions that digital evidence is a “double-edged sword” that provides both more evidence to help solve (notoriously difficult to prove) sexual assault cases (Randall, 2010), but also increases the complexity of these cases and creates burdens on both sex crime investigators and the victims of these crimes. Overall, sex crime investigator responses show a need for new or modified forms of policing that respond to the influx of digital evidence and organizationally acknowledge the digital shift in policing practices. These findings echo broader emerging research on the challenges of policing in the digital age (Burruss et al., 2018; Quick & Choo, 2018; Vincze, 2016), while providing perspectives on the particular ways said challenges and opportunities manifest in the context of sexual assault investigations.

“This is the age of technology”: The ubiquity of digital evidence in sex assault cases

Interviewee responses clearly demonstrate the need for more recognition and attention directed to the growing role played by digital evidence in cases of sexual assault. Sex crime investigators express that digital evidence is now an element in the vast majority of cases:

Brian: [Digital evidence] is always involved in sex crime cases unless it’s a true—which are rare—stranger-on-stranger [sexual assault], walking through the parking lot to your car at 10 o’clock and some stranger abducts her or they don’t have a prior relationship at all. This is the age of technology. So most often our sex assaults—there’s [digital] communication there, […] there is some kind of relationship there. And if you’re a teenager or even in your 20s, 30s, or 40s, you have a cell phone, and you have a computer, and there’s some kind of dialogue and communication there. […] almost all the time there’s a phone involved in what I’m investigating. Or a computer—a phone or a computer.

Bradley: I’d say the vast majority [of sex crimes] have some sort of technological component whether it’s Facebook, whether it’s texting, whether it’s […] social media. Because most sexual assaults are, [the] suspect is known to the victim. […] That’s just the way it falls because of the relationship factor.

These officers’ comments highlight that, because most perpetrators of sexual assault are known to the victim, digital communication between the parties exists in almost all cases. The digital traces left by these digital conversations (via text message, social media messages, or email) often become pieces of digital evidence that must be accessed and interpreted within the processes of case construction. Echoing these sentiments, other investigators identify the extensive and complex role that social media and texting archives now play in the investigation of sexual assaults. Officers explain that victims and offenders may “communicate with each other before, after, or during an offence” (Samantha), meaning that in most cases “somehow technology [is] involved in the investigation” (Brenda). As the following officer expresses, the search for digital evidence is now often their first step in a case:

Darryl: When somebody comes in with an investigation, I mean first thing you do is to ask someone consent if we can take your phone because we’re looking for communication between the suspect and the victim, any type of communication.

Responses like that of Darryl demonstrate that there has been a considerable shift in the policing of sexual assault due to technological innovations and ubiquity. Such a dramatic shift in technology mediates relationships that constitute sex crimes and elaborates the complexity of police response to these crimes (Manning, 2008). From the beginning of an investigation, the digital component of a case figures prominently and impacts both the labor process (e.g., how sex crimes are approached) and workload (e.g., time in which it takes to process and interpret evidence when constructing the theory of the crime) in particularly dramatic ways in sex crime units.

Insufficient resources and the backlog problem

The under-resourcing of digital forensics units and digital training for police officers is well documented in the broader policing literature (Quick & Choo, 2018; Vincze, 2016). Researchers reveal these shortcomings, in combination with the huge amount of digital information now involved in many criminal cases, result in backlogs that considerably lengthen timelines for many investigations (Vincze, 2016). We find these shortcomings have particular impacts in sex crime units wherein—as discussed above—preexisting relationships between most victims and offenders result in high levels of digital communication to sort through and—as discussed below—victims are particularly at risk of revictimization due to shortcomings (e.g., lengthy investigations and delayed trials) of the criminal justice system (Jordan, 2008; Randall, 2010).

In the majority of sex crime units included in our study, the result of increasing digital evidence was backlogs and considerable wait times as understaffed digital forensic/tech crime units and a few tech-savvy sex crime officers were over-relied on to help access, store, and analyze digital devices and online accounts. As the following officer explains, in her unit they are forced to rely on the technological know-how of their one-member Internet Child Exploitation (ICE) unit to help with technology-related evidence for the entire sex crimes unit:

Serena: [In addition to the ICE officer’s own child exploitation cases], what would also happen is he would also get all the phones, all the computers, he would get everything. So he is so bombarded, it is impossible to get anything done […] with the sheer volume of stuff that comes in.

Serena describes how the police department in her area has not provided enough staff and organizational support to keep up with the huge influx in digital evidence. Depending on their location, this sentiment was expressed by officers to varying degrees, as some areas were seen to have somewhat understaffed digital forensic units while others were relying on a single investigator to fulfill the digital forensic needs and digital know-how needs for multiple units.

Despite most officers acknowledging that digital technology and digital know-how are now integral parts of investigating sexual assault cases, many express that the organizational structure of sex crime units has not adequately changed to reflect and support the new role of digital technology in these cases. This was demonstrated, for example, in the reported dearth of hiring for technologically skilled staff:

Brenda: We’re completely understaffed when it comes to our tech crimes people so those people who are supposed to be assisting us to glean that information [about digital components of sex assault cases] we have very few people that […] actually do that work for us.

The huge increase in volume of digital evidence in sex crime cases has not been met with an equal increase in resources and staffing for digital forensic and tech crime units. Additionally, as Marissa expressed, there is a need for broader organizational change and training to allow all officers to deal with this evidence to some extent:

Marissa: The impact of digital evidence on sex crimes increases the need for digital forensic units and officers at all levels that understand digital technology and various social media platforms. […] The amount of cases we get now involving the technology, the cyber stuff, has increased exponentially. And, we have not been equipped at the same pace.

Officers describe how the organizational structures of police units have not changed enough to accommodate the percentage of sexual assault cases that require digital forensics and technological skills. Thus, officers describe relying on the cohort of younger officers that—due to growing up with digital technology—tend to have more digital know-how:

Edward: Oh [the digital component] has been huge. […] It has made greater demands on us, investigative-ly. And, kind of presuming we have a knowledge that we might not have. […] The new hires who are under 35 have a lot of familiarity with social media, some people have very little—but there is the presumption that you can deal with it and that you’ll be competent.

Shirley: As far as technology goes, it really depends. You can get somebody who’s been on the road for a couple of years. They’re 22 or 23 years old. They know Facebook, they know Kik, they know what all those applications are. They can get basic information and it’s very easy [for them]. And somebody else, who has 35 years of service, they’re calling and they’re on ‘the Facebooks’ […]. But yeah as far as training goes, I think we can definitely improve as far as providing investigative skills to members up front, as far as best practices in terms of how to handle exhibits [of evidence].

The above officers describe relying on the technological capabilities that younger officers happen to have. Thus, the ability of a given sex crime unit to effectively investigate crimes involving digital evidence may be arbitrarily related to the abilities officers happen to possess. Such practices do not result in the production of a community of practice (Wenger, 2000), but rather the exchange of knowledge and practice on an ad hoc basis. As Anthony describes: “I learn from partners, and all the new guys who are coming up are so much more technical savvy, techno-savvy, you have to learn from them to carry on because that’s more of our job now.”

Recognizing that increasing levels of digital evidence in sex crime cases have not been met with adequate human and material supports, many officers report attempting “to train themselves” to deal with this evidence, particularly that tied to social media sites. As training cannot be readily established for every new technological application and would become obsolete in a matter of months, officers who are more equipped to teach themselves or learn informally from other officers are identified as best able to keep up with the digital turn in policing. Many asserted that they would like to have more training on how to find and properly handle digital evidence. Some mentioned requesting technology-related investigative courses and others who had received training on Internet evidence analysis, cell phone forensics, and network investigative techniques mentioned that the training needed to be completed more frequently to keep up with constantly changing technology. Officers also mentioned, however, that often-overburdened sex crime units do not have enough officers to allow for frequent absences for training. Yet it may be necessary to prioritize this training, as many officers assert that the most difficult part of modern sexual assault investigations is keeping up with the rapid rate of technological change.

Many officers expressed that organizational shortcomings are aggravated by a portion of supervisors and officers who, they feel, are resistant to the focus on digital evidence in current sex assault investigations. While the struggles of adopting new technologies in policing more broadly have been noted in existing literature (Vincze, 2016), our findings illuminate how this “issue of change management” (Vincze, 2016, 192) is experienced within the particular context of sex crime units. In essence, officers felt that some colleagues opted to not fully recognize the necessary shift toward digital policing that must occur in sex crime units:

Steven: Some of the higher-ups and old boys […], I don’t think they understand the complexities of investigations now. Like if you investigated an assault 10-15 years ago, you’re not talking about three production orders to get the Rogers³ information and to get the search warrant for the property locker and the phone, and getting the production order for the app [lication] that they’ve used on the phone—like, you didn’t have all that stuff a couple years ago. […] The technology has made our investigations lengthier and more complex and more time consuming and not everyone understands that, I don’t think.

Matthew: Everybody uses Facebook nowadays and [it’s an issue for those who] don’t know how to get to Facebook or capture the information that’s on Facebook—just with a screen capture, whatever it takes. But that’s the challenge because we’re dealing with an older [police] regime. In most police services you’ve got the old guys that say ‘I used to solve crimes on pen and paper, I don’t need the computer, because we did a great job back then’—but it’s a completely different world. […] This isn’t your father’s police force anymore, and that’s one of the big challenges we have is the resources in our office and within the service—people just don’t have the tech backgrounds yet. Now as we hire younger guys they come with that because they know nothing else but tech. So, that’s helping a bit but we’re still severely backlogged.

As these officers describe, individual resistance to new technology’s role in policing sex crimes may further stall attempts to acquire adequate supports and resources for digital era investigations. While “cops typically aren’t, you know, tech savvy, computer people” (Christie), our research findings show that there remains ample evidence that more “tech savvy” officers are required to optimize policing processes and meet investigative needs. While sex crime policing now regularly demands digital policing, many officers are not as digitally literate as these units now call for and more technologically informed and trained officers are required if sex crime units are going to keep up with the technological advancements that broadly impact the nature of investigations in this area.

The increase in digital evidence has changed the nature of sexual assault investigations in substantial ways. The traditional organizational structures are no longer adequate as, for instance, a sex crimes investigator may now need to be in close proximity to the ICE unit as some officers report relying on the expertise of ICE unit members when working the technological aspects of physical sexual assaults: “I liaise all the time with ICE guys […] and I’m always in that office back and forth because we’re working pretty [closely], we’re separated but we’re intertwined” (William). Thus, officers described the structure of policing units as inadequate for facilitating the necessary cooperation between units with diverse specializations (e.g., physical acts of sexual violence vs. cybercrimes) as demanded by the changing nature of sexual assault investigations. Whereas, technological supports differ considerably depending on the specific police organization, with a few officers saying they felt they were well supported by their present tech provisions, the norm across agencies remained a backlog in overburdened tech units and a lack of training. Thus, moving forward, police organizations will need to: challenge the typical demarcation of certain units, introduce regular technology training, and hire personnel dedicated to processing electronic evidence and assisting in the technological aspects of traditionally “offline” crimes. This process of boundary spanning (Aldrich & Herker, 1977; Giacomantonio, 2014), contextualized by broader research findings regarding how best to structure policing units to address barriers to communication and cooperation (see Dupont, Manning, & Whelan, 2017; Manning, 2008), requires an initial recognition that sexual assaults take place within a digitized world and that the organization’s internal networks and orientation must adapt to this external reality. Such a move would increase the absorptive capacity (Zahra & George, 2002) of the organization to technological changes that invariably have implications for sexual assault cases.

Digital evidence as a double-edged sword

Digital evidence was seen by officers as a double-edged sword: it provides more convincing evidence in some sexual assault cases but also makes cases much more lengthy and invasive for victims. In terms of the former, officers described how having more evidence available, namely in sexual assault cases that would have traditionally been a case of “he-said she-said,” provides more context around each situation:

Brian: There’s been a real shift. When I started in 1991, you didn’t have the text messages. You didn’t have the social media […] evidence that you get now. […] I think, especially the cases where you have usually there’s only two people there […]—the victim and the accused—and you have one word against the other, […] it certainly helps the case if we can back it up with some text messages. One way or the other, whether it’s for or against the accused, to me as an investigator it’s an advantage to have those.

Lois: [Before 2007] most of our files were he-said she-said, and then once social media evolved almost every file that we had—or a lot of them—had to do with social media and […] in a lot of ways it provided you with some really great evidence. Although the investigation was prolonged it provided, ya know for instance, a teenager involved in a relationship with an older male, and obviously because of their age they couldn’t consent, and they were texting or sexting or whatever or talking about the sexual experience they had, you put those text messages in front of the guy, ya know, what can he say and then you end up getting a bit of a slam dunk confession which makes for this teenager not to have to testify really at the end of the day.

As shown here, digital technologies liberate investigators from having to prove communications between complainant and defendant, but also serve as a mode of verification to claims of sexual assault (a crime that has been long regarded as particularly difficult to investigate and prove) (cf. Powell & Henry, 2018; Randall, 2010). As noted by Brian, digitally recorded communication has shifted the manner in which sexual assault investigations are carried out. These digital conversation archives provide previously unavailable evidence that can help interpret the accuracy of the, often conflicting, perspectives of the complainant and defendant. Digital evidence, an officer explained, can act as “digital breadcrumbs” (Brianna) that lead to the offender. In some cases, it challenges the “he-said she-said” (Powell, 2010) nature of sexual assault cases and provides evidence that lessens the well-documented burden of testimony for sexual assault victims (Randall, 2010). Lois evinces that in instances of text messages between a minor and an adult, this sort of evidence can elicit a confession and reduce the stress on witness testimony. In such cases, digital evidence is perceived to act as the perfect “digital witness” (Dodge, 2018).

Despite the utility of “digital breadcrumbs” in sex crime investigations, the other side of the sword’s edge is that digital evidence—though seemingly delivering a neutral account—may be difficult to interpret and that the management of digital evidence can be extremely time-consuming for officers and invasive for victims. Early research shows that officers need to be careful to interpret this evidence in the context of the online/digital forms of expression (Slane, 2015) and to understand that interpretations of digital evidence (especially in cases of sexual assault) are malleable despite their “neutral” appearance (Dodge, 2018; Hlavka & Mulla, 2018; Powell, 2015). For example, as complainants’ post-assault social media and text conversations become a common form of evidence in sexual assault trials, scholars are recognizing how this evidence can be misused against the complainant due to misconceptions about how a victim should act following a sexual assault based on stereotypes of sexual assault victims and victimization (Dodge, 2018; Bluett-Boyd et al., 2013; Hlavka & Mulla, 2018; Powell, 2015). As Hlavka and Mulla (2018) find in their analysis of the use of text message evidence in sexual assault trials, “rather than unsettling the trope of ‘he said, she said,’ text messages become contested evidence animated by court actors within contexts of long-standing cultural narratives of sexual victimization and offending” (Hlavka & Mulla, 2018, 401). Echoing these findings, some officers described how social media evidence might be used against complainants in the court process; and, thereby, this evidence may actually make the case more difficult to prove at times. For instance, the following officers’ statements show how digital evidence may be interpreted based on misconceptions/stereotypes regarding sexual assault in some cases:

James: [The defense looks at the victim’s social media account and says] ‘Oh look, she went to a party and she’s gloating about how she kissed this guy. Yet it’s sexual assault’. You know, like I’m a [social media] creeper. And I will always bring up social media to my victim if, especially if I find stuff that basically contradicts what they’re saying. Because I find that it’s harder to prove in court, especially when I know that defense is gonna use that. And they do it a lot. I lost a case because of it. Where a sexual assault, it was legit. It happened. But yet, because she was seen on social media, and there’s pictures of her with the accused, laughing and having drinks after the fact. She couldn’t tell us when those pictures happened. So, we lost the case because the judge didn’t believe that she purposefully stayed away from him after […] ‘If you’re that scared, why’re you still hanging out with him?’ kind of thing.

James reports feeling that digital evidence worked against the “truth” in the case he referenced. Here, social media evidence was used to argue that the complainant was not acting “as a victim should” following a sexual assault and thus the defendant was not found guilty. In this case, the digital “trace” that is offered does not provide an objective account of the truth but is, like all evidence, open to (mis)interpretation and can count against sexual assault victims.

Officers also expressed high levels of frustration with how much longer it takes to investigate sexual assaults that include digital evidence and how this makes their jobs more difficult and negatively impacts victims. Even for those investigators with digital technology know-how and adequate training, digital evidence has provided many new challenges related to cross-jurisdictional cases and data requests that significantly slowdown investigations. For instance, one officer discussed how something as simple as needing to see a conversation between an accused and complainant that occurred on Kik⁴ can slow down an investigation as there is a lengthy wait time to get a warrant to receive the information and to get access granted from the company, followed by an additional wait time for the forensic examiner to review the device. Max further explains that digital evidence, by slowing down cases, creates frustrating wait times for victims:

Max: So, when people say why is this investigation taking so long, well we’re waiting to get the evidence in order to get the reasonable probable grounds to lay the charge. So there’s a lot as far as the technology side with just phones and computers, right? There’s a lot. And even with Facebook messages and having to write a MLAT, which is an international type warrant for a company outside of Canada, that’s […] a lot. So any sexual assault investigation […] involving social media and stuff can be time consuming.

Officers, as evidenced in Max’s account, were frustrated about the amount of time and effort necessary to get a warrant or production order to access digital information from companies such as Facebook that are located outside of Canada. Officers are now required to do long international warrant processes for a huge portion of cases. Where once this kind of cross-jurisdictional, complex case was rare, it is seemingly becoming the norm in sex crime policing. Officers discuss how search warrants that were once very short to access someone’s home now take multiple days to fill out in order to access something like an IP address. A lack of cooperation or timeliness from internet service providers or social media corporations can also create difficult hurdles for police to manage (Powell & Henry, 2018). Thus, due to a combination of the backlogs in many digital forensic units and the time it takes to acquire complex warrants for digital evidence, officers express concern for the increased wait times experienced by victims of sexual assault, which can have impacts including victims opting to no longer pursue the case, remembering less detail at trial, or being revictimized by reliving the case details after a prolonged period (Spencer, Dodge, Ricciardelli, & Ballucci, 2018). These concerns are especially noteworthy given the notoriously high level of victims of sexual assault that report being revictimized or otherwise dissatisfied with the reporting and investigation process (Jordan, 2008; Randall, 2010).

Officers also expressed that victims—especially teenagers—are very upset when they have to give up their phones for long periods of time. This is especially acute when they are going through a challenging time in their life as a result of sexual victimization. As one officer expressed, the phone is often their lifeline to connect to friends and family and to have it taken away for multiple weeks or months can be extremely difficult. According to Edward, it can also feel like the police are taking away “their safety” during the process of recovering from sexual victimization. Some officers even said that they’ve had teenager complainants who would rather not continue with a case if it requires giving up their phone for a long time:

Sarah: Yeah, we’ve taken some steps here to try to get through the phones very quickly, but [especially for teenagers] it is literally like they’re giving you their arm. […] we’re glad they came forward, […] we don’t want to give them any reasons not to come forward in the future if something happens again. And simply keeping holding on to their cell phone for a long time to a kid could be something that really would prevent them from coming forward again.

Henry: Both here and our [other police service organizations] labs are so backlogged with victims’ phones we can call the tech-crime lab and say look can I get a quicker turn-around, so I can get back this victim’s phone. You don’t want to leave them without their phone, they have already been victimized enough. They will try to push them up the queue, but at the end of the day, you got a homicide going on, ya got an active… it is what it is. They are so backlogged that it makes it difficult. There is a huge backlog in tech-crime.

These comments on the long wait times and need to take victims’ phones demonstrate that digital evidence may, in some cases, be amplifying the already extremely difficult experience of being a victim of sexual violence in the criminal justice system. Therefore, while in some cases digital information may provide “game-changing” (Powell, 2015) evidence in a sexual assault case that would otherwise have floundered in court, digital evidence has also had negative side effects such as slowing down police investigations and allowing for more intrusive investigations of complainant behavior and the removal of their social “lifeline” (i.e., mobile/smartphone). This mix of very negative and very positive effects expressed by police demonstrates the double-edged sword of digital evidence and the variety of challenges and opportunities for investigating sexual assaults in the digital age.

Conclusion

In this article, we demonstrate that sexual assault cases now regularly include digital evidence and require digital policing. While the amount of digital evidence has been increasing in all crime categories (Yar, 2013), we find that the infusion of digital evidence is particularly noteworthy in sexual assault cases given there are often preexisting relationships between the complainant and defendant in these cases. In addition to dealing with the ubiquity of digital evidence in sexual assault cases, we find that sex crime investigators face challenges in terms of handling digital evidence and considering the impact of digital investigations on victims. Although the nature of investigating sex crimes in the digital era has undergone a significant shift, we show that this shift has not been adequately accounted for within policing organizations in terms of resources, skill, and knowledge development. Specifically, our analysis demonstrates how digital evidence taxes the resources of sex crime units and challenges their capacity to address the knowledge and time demands of collecting, processing, and cataloging digital evidence. These findings both reflect broader emerging research on the challenges of policing in the digital age and provide police perspectives on the particular challenges that digital evidence poses for sexual assault investigations. In sexual assault cases specifically, officers presented digital evidence as a double-edged sword that provides both more evidence and new challenges for police and victims. While officers express that digital evidence may provide more conclusive proof in the notoriously difficult pursuit of proving sexual assault charges, they are also concerned that this evidence may be unfairly used against victims at trial and may make cases more lengthy and invasive for victims.

Although concerns may vary somewhat depending on the police organization or unit we interviewed, the difficulties police face are a derivative of the increasingly digital world. Yar (2013) notes that traditional agencies of criminal justice are largely under-equipped and poorly adapting to the realities of policing in the digital age. Shortages in technologically trained personnel mean that investigations take longer to complete and require more resources to do so. Based on these findings, a revamping of education or skill requirements for police that extend beyond traditional police foundations and police college curriculum to include computer science, computer programming, forensic sciences, and other such diploma or degree-based programs may be value-added considerations for police organizations as technology becomes increasingly salient in societal living (and thus criminal acts). Overall, we find that the influx of digital evidence in sexual assault cases requires a commitment to digital policing and further attention to the impacts that digital investigations have on already overburdened sex crime units and victims of sexual assault.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Social Sciences and Humanities Research Council Insight Development Grant.

Notes

References

Aldrich

Herker

(1977). Boundary spanning roles and organization structure. The Academy of Management Review, 2(2), 217–230.

Arnes

(2018). Digital forensics. Hoboken: John Wiley.

Baym

(2011). Personal connections in the digital age. Cambridge: Polity.

BBC News. (2016). Police forces ‘overwhelmed’ by digital evidence, watchdog finds, 03 November.

Beebe

(2009). Digital forensic research: The good, the bad, and the unaddressed. Advances in Digital Forensics, V, 17–36.

Bluett-Boyd

Fileborn

Quadara

Moore

(2013). The role of emerging communication technologies in experiences of sexual violence: A new legal frontier? (Report No. 23). Melbourne, Australia: Australian Institute of Family Studies.

Boyd

(2010). Social network sites as networked publics: Affordances, dynamics, and implications. In Papacharissi

(Ed.), Networked self: Identity, community, and culture on social network sites (pp. 39–58). New York, NY: Routledge.

Brown

(2015). The blue line on thin ice: Police use of force modifications in the era of cameraphones and YouTube. British Journal of Criminology, 56, 293–312.

Burruss

Holt

T. J.

Wall-Parker

(2018). The hazards of investigating internet crimes against children: Digital evidence handlers’ experiences with vicarious trauma and coping behaviours. American Journal of Criminal Justice, 43(3), 433–447.

10.

Campbell

J. L.

Quincy

Osserman

Pedersen

O. K.

(2013). Coding in-depth semistructured interviews problems of unitization and intercoder reliability and agreement. Sociological Methods & Research, 42, 294–320.

11.

Carimico

Huynh

Wells

(2016). Rape and sexual assault. Georgetown Journal of Gender and the Law, 17, 359–410.

12.

Casey

(2011). Digital evidence and computer crime: Forensic science, computers, and the internet. Cambridge, MA: Academic Press.

13.

Chaikin

(2006). Network investigations of cyber attacks: The limits of digital evidence. Crime, Law & Social Change, 46, 239–256.

14.

Charmaz

(2006). Constructing grounded theory: A practical guide through qualitative analysis. Thousand Oaks, CA: SAGE Publications Ltd.

15.

Clifford

R. D.

(Ed.). (2006). Cybercrime: The investigation, prosecution, and defense of a computer-related crime (2nd ed.). Durham, NC: Carolina Academic Press.

16.

Diss

(2013). Whether you “like” it or not: The inclusion of social media evidence in sexual harassment cases and how courts can effectively control it. Boston College Law Review, 54(4), 1841–1880.

17.

Dodge, A. (2018). The digital witness: The role of digital evidence in criminal justice responses to sexual violence. Feminist Theory, 19(3), 303–321.

18.

Dupont

Manning

Whelan

(2017). Introduction for special issue policing across organizational boundaries: Developments in theory and practice. Policing and Society, 27(6), 583–585.

19.

Faith, T., & Bekir, C. (2015). Police use of technology to fight against crime. European Scientific Journal, 11(10), 286–296.

20.

Giacomantonio

(2014). A typology of police organizational boundaries. Policing and Society, 24(5), 545–565.

21.

Giordano

S. M.

(2004). Electronic evidence and the law. Information Systems Frontiers, 6(2), 161–174.

22.

Gogolin

(2010). The digital crime tsunami. Digital Investigation, 7, 3–8.

23.

Goodison

S. E.

Davis

R. C.

Jackson

B. A.

(2015). Digital evidence and the US criminal justice system (Report). Santa Monica, CA: RAND Corporation.

24.

Gottehrer

(2015). Connected discovery: What the ubiquity of digital evidence means for lawyers and litigation. Richmond Journal of Law & Technology, 22(3), 1–27.

25.

Hlavka

H. R.

Mulla

(2018). That’s how she talks: Animating text message evidence in the sexual assault trial. Law and Society Review, 52(2), 401–435.

26.

Horsman

(2017). Can we continue to effectively police digital crime? Science and Justice, 57, 448–454.

27.

Irons

Lallie

(2014). Digital forensics to intelligent forensics. Future Internet, 6(3), 584–596.

28.

Jordan

(2008). Perfect victims, perfect policing? Improving rape complainants’ experiences of police investigations. Public Administration, 86(3), 699–719.

29.

Kerr

(2005). Digital evidence and the new criminal procedure. Columbia Law Review, 105(1), 279–318.

30.

Kurasaki

K. S.

(2000). Intercoder reliability for validating conclusions drawn from open-ended interview data. Field Methods, 12(3), 179–194.

31.

Losavio

Seigfried-Spellar

K. C.

Sloan

J. J.

(2016). Why digital forensics is not a profession and how it can become one. Criminal Justice Studies, 29(2), 143–162.

32.

Manning

P. K.

(2008). The technology of policing: Crime mapping, information technology, and the rationality of crime control. New York: NYU Press.

33.

Palmer

(2001). A road map for digital forensic research. DFRWS Technical Report, DRT-T001 Final. Rome, New York: Air Force Research Laboratory.

34.

Powell

(2010). Configuring consent: Emerging technologies, unauthorized sexual images and sexual assault. Australian & New Zealand Journal of Criminology, 43, 76–90.

35.

Powell

(2015). Seeking rape justice: Formal and informal responses to sexual violence through technosocial counter-publics. Theoretical Criminology, 19(4), 571–588.

36.

Powell

Henry

(2018). Policing technology-facilitated sexual violence against adult victims: Police and service sector perspectives. Policing and Society, 28(3), 291–307.

37.

Powell

Stratton

Cameron

(2018). Digital criminology. New York, NY: Routledge.

38.

Quick

Choo

K. R.

(2018). Big digital forensic data. Singapore: Springer.

39.

Randall

(2010). Sexual assault law, credibility, and “ideal victims”: Consent, resistance, and victim blaming. Canadian Journal of Women and the Law, 22(2), 397–433.

40.

Scanlan

(2011). Digital evidence in criminal law. Aurora, IL: Thomson Reuters.

41.

Slane

(2015). Motion to dismiss: Bias crime, online communication, and the sex lives of others in NJ v. Ravi. In Bailey

Steeves

(Eds.), eGirls, eCitizens (pp. 253–280). Ottawa, Canada: University of Ottawa Press.

42.

Spencer, D., Dodge, A., Ricciardelli, R., & Ballucci, D. (2018). “I think it's re-victimizing victims almost every time”: Police perceptions of criminal justice responses to sexual violence. Critical Criminology, 26(2), 189--209.

43.

Tun, T., Price, B., Bandara, A., Yu, Y., & Nuseibeh, B. (2016). Verifiable Limited Disclosure:Reporting and Handling Digital Evidence in Police Investigations. In: iRENIC: 1st International Workshop on Requirements Engineering for Investigating and Countering Crime, 12 Sep 2016, Beijing, China.

44.

Vincze

E. A.

(2016). Challenges in digital forensics. Police Practice and Research, 17(2), 183–194.

45.

Wenger

(2000). Communities of practice and social learning systems. Organization, 7(2), 225–246.

46.

Yar

(2012). E-crime 2.0: The criminological landscape of new social media. Information & Communications Technology Law, 21(3), 207–219.

47.

Yar

(2013a). The policing of internet sex offences: Pluralized governance versus hierarchies of standing. Policing and Society, 23(4), 482–497.

48.

Yar

(2013b). Cybercrime & society (2nd ed.). London: Sage Publications.

49.

Zahra

S. A.

George

(2002). Absorptive capacity: A review, reconceptualization, and extension. The Academy of Management Review, 27(2), 185–203.