Seeking rape justice: Formal and informal responses to sexual violence through technosocial counter-publics

Introduction

On a Saturday night in August 2013 two young men sexually assaulted a 16-year-old young woman. Trent Mays and Ma’lik Richmond, both also 16 and players on the high school football team, would later be charged and found guilty of rape. Mays would also be charged and found guilty of dissemination of child pornography in relation to images that were taken and distributed of the sexual assault (Oppel, 2013). According to court reports, Mays sent picture and text messages from his iPhone, including one of the young woman naked and unconscious with what appears to be semen on her chest (Ohio Court of Common Pleas, 2012). Several witnesses had taken images that they subsequently shared with others via mobile phone, email and social media. In one photograph Richmond and Mays are seen carrying the clearly unconscious young woman by her wrists and her ankles.

That night in Steubenville, Ohio (United States), was not the first time, and nor would it be the last, that images of rape were widely distributed online and via social media. The perpetrators, witnesses and their peers shared the images along with commentary that minimized the rape and blamed the victim. Next came the rape bullies. Initially other students who heard of the rape posted vicious tweets about the victim, including ‘Whores are hilarious’, ‘If they’re getting “raped” and don’t resist then to me it’s not rape’ and ‘Song of the night is definitely Rape Me by Nirvana’ (Twitter.com), as well as expressions of empathy with the perpetrators and concern for what the legal process might mean for their futures. Yet what was significant about this particular case was that, according to media reports, it was the distribution of these images that prompted police to investigate the social media material being publicly distributed, to call in witnesses for interviews and to seize mobile phones that revealed further evidence of the rape (see Levy, 2013). Formal mechanisms of justice were being assisted through the evidence recorded on smartphones and shared on social media in a case where, due to the victim’s unconscious state and inability to recall precise details of the rape, a conviction for rape would have otherwise been unlikely.

A year later images of the rape of another 16-year-old young woman were circulated via social media, this time to a different effect. Rather than the images facilitating formal justice ¹ the young woman’s experience would become the subject of an Internet meme, which invited a global community to mock the rape by posting photographs of themselves mimicking the original images of the half-naked woman after the assault, along with the hashtag #JadaPose (see Bates, 2014). Again, it was neither the first time nor the last that a victim-survivor of rape would become the subject of online bullying, harassment and gender-based hate speech in relation to a sexual assault. Though what stands out about this particular case is what happened next. The victim-survivor Jada responded to the online abuse with her own hashtag activism; posting a photograph of herself striking a pose of defiance and strength—her arm curled like Rosie the Riveter—along with the hashtag #IamJada (Twitter.com). Thousands of supporters rallied online in solidarity with Jada’s counter-campaign which trended on Twitter under the hashtags #IamJada, #StandwithJada and #JadaCounterPose (Twitter.com). Jada had given voice to her experience, reclaimed an identity of strength rather than victimization and drew the support of a global online community condemning sexual violence against women and girls.

This article explores various ways in which communication technologies are mediating new social practices of informal justice in response to rape. By communications technology I am referring primarily to mobile and smartphones, tablets, computers and Internet-enabled devices, including those capable of generating text, image and video content which can in turn be shared with others whether via text and multimedia messaging, email or publishing to the Internet. The publication of user-generated content in particular is a key feature of what is variously termed the new media or Web 2.0, including text, images and video content, and across longer blog formats (such as Tumblr, WordPress or Blogger), social networking profiles (such as Facebook or Google+), video and image-sharing platforms (such as YouTube, Instagram or Flickr) and micro-blogging social media (such as Twitter). The new media are equally typified by their ‘many-to-many’ and ‘two-way’ networks of interaction as opposed to the ‘few-to-many’ and one-way or hierarchical generation of content that defines traditional or ‘old media’ (Castells, 1996; see also Yar, 2012).

By ‘justice’ I mean not only formal criminal justice responses by institutions of the state (such as police and in the courts), but also informal justice sought in public and counter-public online spaces and communities in civil society. While feminist criminology has tended to associate justice in response to rape, or ‘rape justice’, with securing convictions and with carceral punishment of offenders some feminist scholars are seriously questioning this approach (e.g. Daly, 2014; Larcombe, 2011; McGlynn, 2011). Not least because conviction rates for sexual offences are so low, and decades of feminist-inspired law reform in western democracies have done little to change this. In other words, when conceived of solely as punitive state-sanctioned outcomes, ‘justice’ continues to elude the vast majority of rape victim-survivors. Moreover advocating for greater punitiveness for violence against women has positioned feminism in an uneasy alliance with conservative law and order politics (McGlynn, 2011; Murray and Powell, 2011) in which feminist demands for justice have arguably been co-opted by neo-liberal governments (Gotell, 2011). As such some feminist criminologists and legal scholars, such as Kathleen Daly (2014) and Clare McGlynn (2011), suggest a more victim-centred approach is needed in conceptualizations of justice including restorative justice approaches and, perhaps radically, forms of community or informal justice outside of the state.

It is in the context of these much larger debates that I suggest that communications technologies are not simply new tools for conventional crimes or in this case conventional or formal justice, but rather that these technologies are mediating new social practices of informal justice which in turn challenge meanings of justice within criminology and the global West more broadly. As such, I am driven by the following questions: how is technology being used in ways that can facilitate rape justice both within and outside the state? What complexities and challenges do communications and new media technologies present for achieving rape justice? What’s ‘new’ about these social practices of informal justice and how might our existing criminological theories of justice need to adapt?

Rape exposed: Communication technologies in the aftermath of sexual violence

Perhaps the foremost example of the ways communications technologies and new media have facilitated justice in response to rape, is where the perpetrator or perpetrators have themselves documented aspects of the assault whether through still or video images, texts, emails or online posts to social media. In Australia, in October 2006, the news media were filled with reports of a sexual assault three months earlier of a 17-year-old girl by 12 young men, who had recorded and since continued to distribute images of the assault. The ‘Werribee DVD’ was initially sold in local high schools for $5 and later emerged for sale on Internet sites for up to $60 with excerpts also made freely available on YouTube™ (Cunningham, 2006). It was not however, an isolated incident. Six months later, Sydney newspapers reported a sexual assault of a 17-year-old young woman involving five teenage young men who filmed the assault on their mobile phones and distributed the image among fellow school students (Braithwaite and Cubby, 2007). In 2009, an Australian Navy cadet was found guilty of rape after filming himself giving the thumbs-up to the camera during an assault against a female colleague (The Age, 2011). In 2012, a group of six men in Bendigo faced charges of rape having also taken video footage via mobile phones during the assault (Snashall-Woodhams, 2012).

Internationally, the news media are likewise replete with reports of similar cases. In one recent case in the United Kingdom, a man who was picked up by police for unrelated offences was charged with rape after police discovered a video recording of the sexual assault on his tablet device (Rankin, 2013). In another, a woman from the United States Navy Academy who had passed out drunk at an off-campus party, learned that she had been raped by three men after friends alerted her to the men’s posts on social media (Chidi, 2013). Finally, in a case that appears to parallel that in Steubenville (Ohio, USA), four Vanderbuilt University footballers have been charged after allegedly gang-raping an unconscious young woman in a campus dormitory. According to media reports, the men took photos and videos of the assault and sent them on to three other men—who have been charged with ‘tampering with electronic evidence’ for allegedly deleting the photos rather than cooperating with the police investigation (Culp-Ressler, 2013).

In some cases, the offender appears to have recorded the assault for his own personal use. These are not unlike the more conventional ‘trophy videos’ kept on VHS, such as by the notorious Australian serial rapist John Xydias, who was found guilty in 2009 of drugging and raping 11 women; the video footage he made was used in court as evidence that the women were unconscious and could not have consented (Hagan, 2009). In a similar case in the United States a 30-year-old man, James Bledsoe, was convicted for the rapes of four women, which he had secretly video recorded; the recordings demonstrated the victims’ non-consent (Los Angeles Times, 2011). However, increasingly, as can be identified from media and court reports, some perpetrators of sexual violence are sharing such imagery with their peers, particularly through social media such as Twitter, Facebook and Instagram, as well as on websites and forums such as Reddit and 4Chan or sites dedicated to sharing user-generated explicit content. In other cases witnesses present at the assault, and who could have intervened or reported the incident, instead laugh along with the primary perpetrators taking photographs and videos that they too post on social media to continue the ‘joke’.

This practice of perpetrators and their peers recording and distributing images of sexual assaults represents a double-edged sword for victim-survivors. On the one hand, such imagery can facilitate a just outcome by the state by presenting evidence not only that the rape occurred (the imagery may demonstrate the victims’ non-consent), but also evidence of the perpetrators’ state of mind. There can be no question of an accused not knowing that there was not consent (the mens rea element of which many rape cases fail to convince a jury, see Larcombe, 2011, 2012), if a photograph shows the perpetrator penetrating a clearly unconscious victim, or he was found to be boasting about the rape to his mates on Twitter, Facebook or Instagram. Nonetheless, the sharing of such imagery online by perpetrators, witnesses and peers extends the harm of the original crime. The impact on a victim-survivor of discovering that images have been distributed and/or becoming the target of public shaming, harassment and online abuse following the rape can be, not only humiliating and a recurring source of trauma, but also tragically severe with some cases having resulted in victims taking their own life. ²

That perpetrators are recording and distributing images constituting evidence of, and in some cases admission to, their crime itself warrants further explanation. It seems counter to logic for perpetrators of crimes generally to first document evidence of their offence, and then to make it publicly available knowledge. Arguably this is particularly so for sexual offences; not least due to the possibly of being apprehended by police, but also due to the potential social consequences of outing oneself as ‘sexually deviant’. Though, as others have suggested, sexual offences occupy a contradictory space within public discourse; while some perpetrators are vilified as ‘monsters’ of heinous crimes, all too often the extent and impact of sex offending is minimized while victims are routinely treated with suspicion and invalidation (see Daly, 2014; Salter, 2013; Waterhouse-Watson, 2013).

In previous work I have argued that we ought to understand the trend in recording and distributing rape images not as a function of the availability of the technology or of youth attempts to gain status online, but rather as an extension of gender-based violence (see Henry and Powell, 2014; Powell, 2009, 2010). In an ‘old crimes, new tools’ fashion I identified the problem as underscored by a society in which women remain unequal, their sexual autonomy undervalued and violence against them is condoned. Feminist scholars have long debated the existence of a ‘rape culture’ in which sexual violence against women is implicitly and explicitly condoned, excused, tolerated and normalized (Brownmiller, 1975; Buchwald et al., 1993; Burt, 1980; Clark and Lewis, 1977). It is difficult to imagine rapists taking and distributing images of their assault, boasting online to their peers and to a wider public audience, if there were not a culture of societal tolerance even acceptance of rape. Moreover, perpetrators of rape have long used various strategies to intimidate, harass and humiliate their victims, and arguably to prolong the experience of power and entitlement; recording and distributing images of the rape may just be an extension of these practices.

Yet, criminologist Majid Yar (2012) makes a persuasive case for considering the impact of communications technologies and new media as, at least in part, a motivator of criminality. In discussing the practice of ‘happy slapping’, ³ Yar (2012: 252) argues that ‘crucial to understanding this phenomenon is the role played by participants’ desire to be seen, and esteemed or celebrated, by others for their criminal activities’. He draws on the Australian Werribee DVD case, as an example where the perpetrators recorded, edited and distributed video imagery of their crime to sell on DVD complete with an ‘R’ rating and credits listing the ‘actors’ involved on the cover (2012: 253). Thus Yar suggests the recording was not an accidental circumstance of the offence, but rather a key driver of it. He argues that this ‘will-to-represent’ one’s transgressive self is linked to broader trends both of a self-creating subjectivity associated with processes of de-traditionalization (e.g. Beck and Beck-Gernsheim, 2002; Giddens, 1991), and the ready availability of new media platforms for such self-creation (Yar, 2012: 251). There are arguably links between this will-to-representation and the pervasiveness of rape culture that can begin to explain why particular sexual offenders would be driven to record and share their crimes, despite the recordings being potentially used as evidence against them.

It is not, however, only perpetrators who are using communications technology to document evidence of rape. There are several cases recently reported in the media where victims themselves have gone to the police with evidence of an offence recorded via a digital camera or their mobile phone. For example, in a 2010 case in Germany, a 12-year-old girl secretly filmed her step-father who had raped her repeatedly using a hidden camera in her bedroom (The Local, 2010). In another case, in the UK a man was convicted and jailed for 10 years after his victim, having recorded the rape on her mobile phone, was able to produce evidence of her non-consent to counter his claim that she had just been ‘playing hard to get’ (Sunderland Echo, 2012). Finally, in two further and separate cases in the UK two men have been jailed for child sexual abuse, after their now adult victims recorded a confrontation via mobile phone and in which the men admitted to the past assaults (Carter, 2013; Duell, 2013). In one of these cases, the woman had confronted her rapist after police had told her that they would not be investigating her claim of sexual abuse as a child, since there was no evidence that could be used in court.

Perhaps it is the widely documented and routine failure of traditional criminal justice to secure convictions in relation to rape that has driven some victim-survivors to document the crimes for themselves. With ‘she consented’ or ‘I thought she consented’ being the most common defences to rape, such digital evidence is potentially game-changing. It is well established in the scholarly literature, that a majority of sexual assault cases involve circumstances where there is no forensic or third party evidence of the assault and the case thus rests on a jury believing the victim’s testimony over the alleged perpetrator’s beyond reasonable doubt. Digital evidence recorded by the victim and produced in court could be a powerful tool for police and state prosecutors as well as facilitating a just outcome for victim-survivors.

Of course, many victims of sexual assault do not report the crime to police for a range of reasons including uncertainty that their report will be taken seriously, ambivalence towards the perpetrator (particularly as the vast majority are known to the victim) and feelings of fear, shame or humiliation (see, for example, Du Mont et al., 2003; Weiss, 2011). Communications technology is being harnessed here too, by facilitating anonymous reporting of sexual assault electronically via mobile phone applications (or ‘apps’) and through websites. In Australia, the South Eastern Centre Against Sexual Assault (or SECASA) in Melbourne received a government grant of $20,000 to develop a Sexual Assault Anonymous Reporting app—SARA for short—launched in March 2013 (Donelly, 2013). The app allows victims of sexual violence, whether it is a current or recent sexual assault, harassment or past assault, to enter details of the violence into the app such as the offenders’ characteristics, when and where it occurred, the type of assault and even an image or short video taken of the scene. A similar smartphone app has also been launched in the United States—ASK DC (Rich, 2013). The data are compiled and analysed to identify localized trends and sexual assault ‘hotspots’ that may assist police in directing their patrol resources or indeed in investigations. The potential benefits of anonymous reporting apps such as SARA or ASK DC extend beyond the offending patterns data that may be made available to assist police. The app also provides advice to victim-survivors, and with their agreement, connects them to local support services with the touch of a button. Sexual assault services such as SECASA hope that providing victims with a positive experience of reporting sexual assault anonymously online, of being heard and having their experience counted, may assist victims in their recovery and even encourage them to report an incident formally to police in the future (Jalote, 2013). In other words, rather than existing in opposition or as discrete categories, there is arguably a continuum between formal and informal justice mechanisms for rape.

Finally, and of most significance to my argument here, communications technologies provide ready mechanisms for activist projects and individual victim-survivors to pursue their own informal justice in response to rape. For example, in 2012 in a widely publicized case, 16-year-old Savannah Dietrich tweeted the name of two teenage boys who had sexually assaulted her, recording and distributing photos of the assault (see also Salter, 2013). The boys pled guilty to a sexual abuse and misdemeanour voyeurism charge and were sentenced to just 50 days’ community work with their convictions to be quashed before they turned 20. As the perpetrators were juveniles, their names and the details of the case had been suppressed, and as such Savannah faced a possible $500 fine and 180 days in prison for outing her attackers. ⁴ Yet, her action in naming and shaming her rapists was a direct response to the injustice she felt as a result of the criminal justice process (Salter, 2013).

While women outing their rapist as a form of activism is not new, communications technologies have enabled more women to speak about and share their experiences of sexual violence victimization with a much wider audience. ‘Ugly Mug’ schemes, where sex worker advocacy groups collate anonymous reports of harassment and sexual assaults by clients, have long been in operation in the UK, USA, Australia, Ireland, Sweden, Norway and Canada—now there is an app for that too, where sex workers can report ‘ugly mugs’ via their smartphone or tablet device. The app also automatically screens incoming and outgoing calls and text messages, and alerts the worker if they have had contact with a phone number that is in the Ugly Mugs database. ⁵ In other well-known examples, rape victim-survivors have named their rapists on YouTube (such as Brie Lybrand who named her father in 2012), ⁶ on the blogging website Tumblr (such as Tucker Reed who named her university boyfriend in 2013), ⁷ on Facebook (such as Chloe Rubenstein who named the men involved in campus sexual assaults in 2010) ⁸ and on Twitter (such as Savannah Dietrich in 2012). Finally, over 2000 photographs of sexual assault survivors holding posters with quotes from their attackers are featured on the Tumblr website Project Unbreakable. ⁹ The project, which does not overtly name or identify anyone, seeks to raise awareness of sexual assault while providing an opportunity for victim-survivors to share their experiences with the world.

Naming their attacker or voicing their experience of victimization may go some way to empowering victim-survivors and facilitating a sense of justice, albeit informal or outside of the state. Yet, in Steubenville it was not the victim herself but a blogger and hacktivists who took justice into their own hands by publicly re-posting screenshots from social media as well as photographic and video evidence, drawing widespread attention to the case online and subsequently in the mainstream media (Levy, 2013). Reportedly frustrated by the slow progress of formal justice and suspicious of perceived inaction by local police and county prosecutors (some of whom were known to have personal connections to the accused players’ families) Alexandria Goddard blogged about the case, including screen shots of anonymized tweets and photographs, on Prinniefield.com (Goddard, 2013). Then on 2 January 2013 members of the ‘Anonymous’ collective claimed to have hacked into the high school servers and students’ e-mail accounts retrieving photographic evidence of the rape as well as personal data of the students allegedly involved, threatening to release the personal data if they did not come forward to police. ¹⁰ In another video the computer-synthesized voice of a hooded figure in a Guy Fawkes mask read out students’ names—those who were suspected of having been either directly or indirectly involved—along with a slideshow of screenshots from Twitter and a photograph of the unconscious victim from Instagram. The videos went viral, re-shared multiple times, with over two million total views. To what extent such activism, or indeed Internet vigilantism, placed pressure on authorities and ultimately contributed to a conviction is unclear. However what is of interest to the argument presented here is whether such community-driven action might signal a new justice environment, facilitated by communications technology, in which informal justice will increasingly intersect with or even in some cases replace formal criminal justice processes (Powell, 2014).

Of course, the distribution of rape imagery and citizen-led or informal justice mechanisms are not unproblematic and they present particular challenges both for formal justice responses and victim-survivors. There are serious due process concerns (such as violations of the right to the presumption of innocence as well as a fair and impartial trial) where alleged offenders are named and shamed through informal justice mechanisms. Furthermore, in some instances formal legal responses including suppression orders or defamation law suits may fail due to the relative ‘ungovernability’ of the Internet; where cross-jurisdictional issues, online anonymity and the sheer volume of material can all create barriers to protecting the civil liberties of accused persons.

Governance and due process concerns are not the only negative fallout possible from these new informal justice mechanisms. There are also substantial negative impacts on victim-survivors of rape in this new technology-mediated justice environment. High profile cases of rape victim suicides following abuse on social media (such as Rehtaeh Parsons ¹¹ and Audrie Pott ¹² ) are tragic examples of the extent of the additional harm and trauma experienced by victims when the evidence of an assault never goes away—and when the response online via social media and the public sphere is all too often negative and victim-blaming.

Further challenges from the perspective of victim-survivors are the contradictory ways in which social media evidence may be drawn on to support a case in court. For example, legal scholars have suggested that social media is altering the legal landscape with lawyers from all areas routinely ‘digging for digital dirt’ (Browning, 2011: 467). Indeed, as Parker and Swearingen suggest ‘it is now common practice for trial lawyers to conduct online research on their own clients, opposing parties, third-party witnesses, experts, and even jurors’ (2012: 34) and ‘with increasing frequency, courts are finding that what you do and say on Facebook can and will be held against you in a court of law’ (2012: 35). While such social media evidence may be used to facilitate formal justice in response to rape by demonstrating the victims’ non-consent or incapacitated state as well as the perpetrators’ state of mind, there is also potential for victims’ own social media activity to be mis-used in efforts to discredit her in court. For instance, should a victim post about a holiday or a night out with friends after an alleged assault, or publish photographs and commentary that do not otherwise conform to community views of the traumatized mentality of a ‘rape victim’, this may be mis-used as counter-evidence of the rape. There is emerging research into the ways in which rape trials become derailed on the basis of jury attitudes and normative assumptions about the nature of rape and expected reactions of victim-survivors (see Ellison and Munro, 2009, 2010). These are challenging issues that we are yet fully to comprehend and address.

Crucial to the focus of this article however, is that the informal justice in the examples referred to here raise questions about the meaning of justice for victim-survivors of rape in a context where conventional justice has routinely failed them. It is to this core concern of what’s ‘new’ about these practices and how our existing conceptualizations of justice might need to adapt, that I now turn.

Theorizing informal justice through a technosocial feminist lens

Feminist theorizing of technology has, over several decades, contributed complex analyses of both the emancipatory potential of communications technologies, as well as the problematic reproduction of gendered power relations in online spaces. For example, ‘cyber’ or ‘techno’ feminists of the 1990s and today have expressed optimism about the capacity for communications technologies, such as the virtuality of online spaces, to transform gendered power relations fundamentally by decentring the body and thus blurring the boundaries of male and female identities (see Haraway, 1985; Turkle, 1995). Building on related work by Manuel Castells (1996, 2007) emphasizing the networked rather than hierarchical relationality modelled by communications technologies, others have highlighted the increased participation of women and the proliferation of counter-discourses made possible by the ‘new media’ (see Fraser, 2014; Harris, 2008; Mackay, 2011).

Yet technofeminist theorists have simultaneously recognized that the emancipatory potential of the fluidity of gender discourse and enhanced participation of women in online space remains ‘constrained by the visceral, lived gender relations of the material world’ (Wajcman, 2010: 148) and the more pessimistic view that technologies represent tools for patriarchal control (Cockburn, 1992). Indeed, the ways in which communications technologies, and social media in particular, have been used to extend the harm of sexual violence through further harassing, humiliating, shaming and blaming victim-survivors itself demonstrates how technologies are not unproblematically ‘liberatory’ for women. As my colleagues and I have argued elsewhere, communications technologies have been taken up as tools with which to facilitate sexual violence and harassment against women and girls as well as expressions of gender-based hate speech in both online and terrestrial space (Henry and Powell, in press 2015).

The various case examples of technology-mediated informal justice that I outline in this article, could likewise be read through the lens of technofeminist theory as forms of feminist activism and resistance online. Indeed a growing body of feminist scholarship has theorized online and ‘new media’ activism through Nancy Fraser’s (1990, 2014) concept of subaltern counter-public spaces in which culturally and discursively marginalized or silenced groups engage in resistant and/or critical speech that is ordinarily delegitimized and excluded from the public sphere. Moreover, criminologists and non-criminologists alike have identified the capacity and uptake of the ‘new media’, with its user-generated and networked relationality, as a particularly powerful medium for facilitating online counter-publics (Salter, 2013) and/or political activism and resistance (Fileborn, 2014) in response to sexual violence and harassment. Here, the use of technology is largely framed as a tool used to facilitate the divergent and marginalized discourses of resistive politics to flourish outside of the public sphere. To return to the case study here of informal responses to rape there can be little question that communications technologies have facilitated the uptake and reach of such counter-public engagements. Yet, to quote Elaine Campbell (2011: 160) writing on post-9/11 security politics in an earlier issue of this journal:

It is one thing to assert that cultural media promote a critical dialogue on the issues of the day, and thereby constitute an important counterpublic sphere of resistive politics. It is another, however, to theorize the value, function and meaning of such media within philosophical debates of the kind of ‘justice’ and the kind of ‘just society’ to which we might aspire.

How then, might our conceptualizations of justice itself, be challenged by these online counter-publics in which informal responses to rape are sought? One of the strengths of feminist theories of technology, beyond engaging with the complexities of power and emancipation, has been to further develop concepts of sociotechnical practices (Wajcman, 2010) or technosociality. In other words, to explore the ways in which technologies become embedded in our experiences of the social world at the same time as they contribute to new social and cultural practices (see Levmore and Nussbaum, 2010; Wajcman, 2010). Drawing on this body of work, I assert that these counter-public engagements both by, and on behalf of, victim-survivors of sexual violence represent more than a resistive politics, but the development of new technosocial practices of informal justice. This argument is contingent on a framing of justice specifically through the lens of victim-survivors justice needs, as much as it is on an understanding of communication technologies not merely as tools but as mediators of new social practices.

The various uses of communications technologies by victim-survivors and their advocates described here highlight that victim-survivors have justice needs and/or interests that are not currently being served by the formal criminal justice system. As I mentioned at the outset of this article, decades of feminist-inspired law reform in western democracies have done little to reduce the attrition of rape cases at each stage of the criminal justice process. This persistent failure of rape law reform has led some feminist criminologists and legal scholars to question whether criminal proceedings are capable of meeting the justice needs of victim-survivors of sexual assault at all (see Daly, 2014; Herman, 2005; McGlynn, 2011; McGlynn et al., 2012). For example, as Judith Herman (2005: 574) argues:

The wishes and needs of victims are often diametrically opposed to the requirements of legal proceedings. Victims needs social acknowledgement and support; the court requires them to endure a public challenge to their credibility. Victims needs to establish a sense of power and control over their lives; the court requires them to submit to a complex set of rules and bureaucratic procedures … Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes-or-no questions that break down any personal attempt to construct a coherent and meaningful narrative … Victims often fear direct confrontation with their perpetrators; the court requires a face-to-face confrontation between a complaining witness and the accused. Indeed, if one set out to intentionally design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.

If we take seriously the notion that justice for many victim-survivors of rape is not only failed by our formal criminal justice system, but that legal proceedings in their current form may in fact be ‘diametrically opposed’ to justice, then we are obliged I think to consider what alternative or innovative justice mechanisms and community-led practices might offer. Indeed, there is a growing body of scholarly literature outlining the potential and emerging evidence base for restorative and other ‘innovative’ justice models in response to sexual violence. Claire McGlynn and colleagues (2012) for example make a persuasive case, as does Kathleen Daly (2014) and both cite a handful of good-practice programmes from around the world. Though there is not the scope in this article to consider in detail the debates regarding restorative justice in response rape, Daly’s (2014) piece identifies five elements of victims’ justice interests that are instructive and particularly relevant to the discussion here.

Daly (2014: 382, emphasis added) employs the concept of ‘innovative justice’ to refer to a variety of ‘justice mechanisms’ that may ‘work alongside of or be integrated with criminal justice, be part of administrative procedures, or operate in civil society’ including ‘activist projects in civil society’. She argues that ‘participation, voice, validation, vindication, and offender accountability’ (2014: 387) are each important in how victims themselves conceptualize justice in response to sexual violence. Indeed, earlier work by Haley Clark (2010) identifies similar justice needs of rape victim-survivors including: information; validation; voice; and control.

To take both Daly’s and Clark’s terms, there is participation, voice, validation and vindication through sharing one’s account of victimization with a supportive online audience who can immediately acknowledge the serious and wrongfulness of the assault and place it in the context of other known patterns of sexual violence. In the people’s courts of new and social media it is possible for women victims to be heard and supported, at least within online counter-publics, in a way not currently offered by formal criminal justice processes. Bianca Fileborn (2014) presents a related argument in which she frames the online sharing of women’s experiences of street harassment (through sites such as Hollaback!) as an informal justice mechanism. While Fileborn’s approach to informal justice could just as readily be framed as online feminist activism, she persuasively suggests that the sharing of women’s experiences of street harassment online provides a mechanism for individual voice and validation in the absence of avenues for formal justice. Certainly there is an overlap between feminist anti-rape activism in online counter-publics, and technosocial practices of informal justice; but I likewise suggest here that the two are not simply interchangeable. Voicing personal experiences of rape has long been a political strategy within feminist activism. Yet to confine understandings of the nature and impact of victim-survivors voicing their experiences of rape to activism alone is to underestimate seriously the individual and personal aspects of these ultimately collective political practices.

In western liberal democracies we are not perhaps accustomed to applying our concept of ‘justice’ to the informal mechanisms that exist outside of the state and in civil society. Yet this is a failing, and a barrier in many ways, to developing both our understandings of justice and diversifying the options available to victim-survivors of sexual violence (see Daly, 2014; Herman, 2005; McGlynn, 2011; McGlynn et al., 2012). Indeed within criminology and sociolegal scholarship, the very concept of ‘informal justice’ is used foremost alongside ‘community justice’ to refer to mediation and dispute resolution or restorative mechanisms, which, while not always operating with the same authority as the criminal or civil law, nonetheless take place within regulatory and often state-funded structures. The concept is however used in international development, post-colonial and/or post-conflict contexts, to refer to traditional or tribal community justice mechanisms that existed and/or continue to exist outside of an imposed or newly formed state structure, or indeed transitional justice (see, for example, Buss et al., 2014; Eriksson, 2013). Vigilantism, is perhaps the most familiar term in public commentary, though has rarely been treated seriously within criminology (notable exceptions include Evans, 2003; Girling et al., 1998; Johnston, 1996). Yet ‘vigilantism’ does not fully capture the nature of the activity described here, in which for the most part there is no focused action against accused perpetrators, but rather the intention appears to be directed foremost on voicing personal narratives of sexual violence to be acknowledged by a trusted audience. If we take the concept of informal justice to refer more particularly to justice practices outside of the state then there is a comparative underdevelopment within theoretical criminology regarding the nature and mechanisms of such practices in western liberal democratic societies.

To be clear, I am not in this article advocating for the abandonment of feminist projects of law and criminal justice reform, nor for their replacement with alternative justice mechanisms whether ‘restorative’, ‘innovative’ or ‘informal’. That successive waves of rape law reform have thus far failed to meet the justice needs of the vast majority of victim-survivors of sexual violence is not in or of itself reason to turn one’s back on formal and criminal justice. Yet feminist criminology is increasingly advocating for a variety of justice mechanisms to be made available for victim-survivors of rape, on the basis that ‘conviction’ is a very narrow concept of justice and one that is not necessarily central to how victim-survivors themselves conceptualize their justice needs. Nonetheless there is a danger that in theorizing the technosocial practices described here as ‘informal justice’, one minimizes the seriousness and impacts of sexual violence (Fileborn, 2014) and downplays the responsibility of the state to take action. Furthermore, there are key victim-survivor justice needs, such as offender accountability and control, which are not necessarily addressed in online counter-publics. There is, rather, an inherent loss of control of one’s narrative of victimization as soon as it is shared online, and even if an alleged perpetrator is ‘named and shamed’ (which, as I have suggested, appears less common than anonymous or de-identified accounts), this is hardly tantamount to the taking of responsibility that accountability implies. Finally, when alleged perpetrators have been named online (such as in the case of Stuebenville referred to earlier), it does not follow that they are shamed; with many in social media communities instead rallying their support for those accused and engaging in victim-blaming and direct harassment of victim-survivors.

What then is to be gained by extending a feminist reading of emerging technosocial practices responding to rape as mechanisms of informal justice? Despite the challenges identified here, framing these practices as informal justice fundamentally recognizes and further validates the justice needs identified by victim-survivors themselves, and their agency in seeking justice whether inside or outside of the state. Second, comparing the justice needs met by these technosocial informal justice mechanisms with those met by formal law and criminal justice responses highlights the continued failings of formal justice and by implication the continued need for reform. Third, acknowledging existing practices of informal justice operating in civil society as ‘justice’ (albeit at the informal end of a continuum of justice mechanisms) and not only ‘activism’ lends further weight to arguments in support of extending justice options for victim-survivors of sexual violence; such as restorative approaches, tribunals and other civil society forums including public hearings and truth-telling inquiries. Finally, and perhaps of broader relevance within criminology, to take seriously the uptake of communications technologies for informal justice across diverse online spaces and spanning the boundaries of western democracies, is to displace fundamentally geo-spatial and conceptual divisions between the formal justice of the ‘successful’ West and the informal, community or traditional justice of emerging, post-conflict or ‘failed’ states. In other words, reflecting on emerging technosocial practices of informal justice, may serve to challenge our Anglo-centric framing of justice and social movements (see Carrington, 2014), and thus open up greater possibilities for innovative justice mechanisms both in theory and practice.

Conclusion

If, as Daly (2014) and others (Clark, 2010; Fileborn, 2014) suggest, ‘justice’ for victim-survivors of sexual violence means information, participation, voice, validation, vindication, control and offender accountability, then arguably we can anticipate social media, blogs and other online communications increasingly mediating informal justice for rape. Certainly such engagement is not unproblematic and nor is it without risks, particularly for victim-survivors themselves. The potential for injustice, through violation of due process rights of accused persons is also real and requires a considered response. The nature of communications technologies, in particular new and social media, means that there is not precise control over which audiences will be reached, or how they in turn will engage with content. Nonetheless, the technosocial practices of responding to sexual violence described in this article can productively be understood as mechanisms of justice, albeit informal, for victim-survivors of rape. Indeed, communications technologies and new media are arguably not simply ‘new’ tools for ‘conventional’ justice. Rather, these technologies are facilitating new meanings and practices of informal justice in technosocial subaltern counter-publics. While the case studies here have explored informal justice through a feminist analysis of responding to sexual assault, there is further work needed within theoretical criminology to account fully for and understand the potential and societal impact of such technosocial practices of both formal and informal, or civil society, justice.