Hostname: page-component-848d4c4894-ttngx Total loading time: 0 Render date: 2024-06-01T06:40:07.629Z Has data issue: false hasContentIssue false
  • English
  • Français

“That's How She Talks”: Animating Text Message Evidence in the Sexual Assault Trial

Published online by Cambridge University Press:  01 January 2024

Heather R. Hlavka  and
Sameena Mulla
Get access Rights & Permissions [Opens in a new window]

Abstract

This ethnographic study of criminal sexual assault adjudication shows how prosecutors, defense attorneys, and witnesses animate text message evidence. In contrast to other forms of courtroom testimony, text messages function as multiauthored representations of recorded correspondence in the past. Attorneys and witnesses animate texts authored by or said to characterize persons represented at trial. By whom and how the texts are animated shapes trial processes. Through a detailed comparative case analysis of two Milwaukee, WI, sexual assault trials, this article attends to the process by which text messages are said to personify or characterize authors’ meaning and intent. This animation of electronically transmitted text speaks to credibility and variably emphasizes a witness's place within gendered and racialized cultural norms. 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.

Type
Articles
Information
Law & Society Review , Volume 52 , Issue 2 , June 2018 , pp. 401 - 435
Copyright
© 2018 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The authors gratefully acknowledge financial support from the National Science Foundation, Program for Law and Social Sciences (Grant number: 1250606) and a Marquette University Regular Research Grant. Human Subjects Protocols were filed with Marquette University's Office of Research Compliance under protocol numbers 2224 and 2373.

The title is taken from a direct quote of a witness who stated, “that's how she talks” when explaining the tone and context of text messages exchanged between himself and a victim-witness. Witnesses of all genders are examined in this article, and the cultural norms through which courts make sense of the texts discussed in this research are highly dependent on gender and race.

Heather R. Hlavka and Sameena Mulla have contributed equally to this work.

References

Alcoff, Linda (2006) Visible Identities: Race, Gender and the Self. Oxford: Oxford Univ. Press.CrossRefGoogle Scholar
Bevacqua, Maria (2000) Rape on the Public Agenda. Boston: Northeastern Univ. Press.Google Scholar
Brodsky, Stanley, Griffin, Michael, & Cramer, Robert (2010) “The Witness Credibility Scale: An Outcome Measure for Expert Witness Research,” 28 Behavioral Sciences and the Law 892–907.CrossRefGoogle ScholarPubMed
Burns, Robert, Constable, Marianne, Richland, Justin, & Sullivan, Winnifred (2008) “Analyzing the Trial: Interdisciplinary Methods,” 31 Political and Legal Anthropology Rev. 303–29.CrossRefGoogle Scholar
Bunt, Laura (2008) “A Quest for Justice in Cuzco, Peru: Race and Evidence in the Case of Mercedes Ccorimanya Lavilla,” 31 Political and Legal Anthropology Rev. 286–302.CrossRefGoogle Scholar
Campbell, Kirsten (2002) “Legal Memories: Sexual Assault, Memory, and International Humanitarian Law,” 28 Signs 149–78.CrossRefGoogle Scholar
Chaiken, Shelly (1980) “Heuristic Versus Systematic Information Processing and the Use of Source Versus Message Cues in Persuasion,” 39 J. of Personality 752–66.Google Scholar
Conley, John M. & O'Barr, William M. (2005) Just Words: Language and Power. Chicago: Univ. of Chicago Press.Google Scholar
Corrigan, Rose (2013a) Up against a Wall: Rape Reform and the Failure of Success. New York: New York Univ. Press.Google Scholar
Corrigan, Rose (2013b) “The New Trial by Ordeal: Rape Kits, Police Practices, and the Unintended Effects of Policy Innovation,” 38 Law and Social Inquiry 920–49.CrossRefGoogle Scholar
Cover, Robert (1983) “Foreward: Nomos and Narrative,” 97 Harvard Law Rev. 4–68.Google Scholar
Crenshaw, Kimberlé (1993) “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” 43 Stanford Law Rev. 2141–1299.Google Scholar
Das, Veena (2006) “Sexual Violence, Discursive Formations, and the State,” in Coronil, F., & Skurski, J., eds., States of Violence. Ann Arbor: Univ. of Michigan Press.Google Scholar
Donovan, Roxanne & Williams, Michelle (2002) “Living at the Intersection: The Effects of Racism and Sexism on Black Rape Survivors,” 25 Women and Therapy 95–105.CrossRefGoogle Scholar
Ellison, Louise & Munro, Vanessa (2009) “Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility,” 49 The British J. of Criminology 202–19.Google Scholar
Ehrlich, Susan (2001) Representing Rape: Language and Sexual Consent. New York: Routledge.Google Scholar
Estrich, Susan (1987) Real Rape: How the Legal System Victimizes Women Who Say No. Cambridge: Harvard Univ. Press.Google Scholar
Finkelstein, Sheldon & Storch, Evelyn R. (2010) ““Admissibility of Electronically Stored Information: It's Still the Same Story,” 23 J. of the American Academy of Matrimonial Lawyers 45–70Google Scholar
Flood, Dawn Rae (2012) Rape in Chicago: Race, Myth and the Courts. Champaign: Univ. of Illinois Press.CrossRefGoogle Scholar
Frieden, Jonathan & Murray, Leigh M. (2011) “The Admissibility of Electronic Evidence Under the Federal Rules of Evidence,” 17 Richmond J. of Law and Technology 5–16.Google Scholar
Frohmann, Lisa (1997) “Convictability and Discordant Locales: Reproducing Race, Class and Gender Ideologies in Prosecutorial Decisionmaking,” 31 Law and Society Rev. 531–56.CrossRefGoogle Scholar
Frohmann, Lisa (1991) “Discrediting Victims’ Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections,” 38 Social Problems 213–26.CrossRefGoogle Scholar
García, Lorena & Torres, Lourdes (2009) “New Directions in Latina Sexualities,” 21 NWSA J. vii–xvi.Google Scholar
Gavey, Nicola (2005) Just Sex? The Cultural Scaffolding of Rape. New York: Routledge.Google Scholar
Gershon, Ilana (2010) The Breakup 2.0: Disconnecting over New Media. Ithaca: Cornell Univ. Press.Google Scholar
Glaser, Barney G. & Strauss, Anselm L. (1967) The Discovery of Grounded Theory: Strategies of Qualitative Research. Chicago: Aldine.Google Scholar
Goffman, Erving (1981) Forms of Talk. Philadelphia: Univ. of Pennsylvania Press.Google Scholar
Gonzalez Van Cleve, Nicole (2016) Crook County: Racism and Injustice in American's Largest Criminal Court. Stanford: Stanford Law Books.Google Scholar
Goode, Steven (2009) “The Admissibility of Electronic Evidence,” 29 Rev. of Litigation 1–64.Google Scholar
Grant, Tim (2012) “Txt 4N6: Method, Consistency and Distinctiveness in the Analysis of SMS Text Messages,” 21 J. of Law and Policy 467–94.Google Scholar
Hartley, Carolyn (2001) “He Said, She Said’: The Defense Attack of Credibility in Domestic Violence Felony Trials,” 7 Violence Against Women 510–44.CrossRefGoogle Scholar
Holstein, James & Gubrium, Jaber (2008) “Constructionist Impulses in Ethnographic Fieldwork,” in Holstein, J. & Gubrium, J., eds., Handbook of Constructionist Research. New York: Guilford Press.Google Scholar
Horst, Heather & Miller, Daniel (2006) The Cell Phone: An Anthropology of Communication. New York: Bloomsbury Academic.Google Scholar
Katz, James & Aakhus, Mark, eds. (2002) Perpetual Contact: Mobile Communication, Private Talk, Public Performance. New York: Cambridge Univ. Press.CrossRefGoogle Scholar
Kessler, Gary (2011) “Judges’ Awareness, Understanding, and Application of Digital Evidence,” 6 J. of Digital Forensics, Security and Law 55–69.Google Scholar
Konradi, Amanda (2007) Taking the Stand: Rape Survivors and the Prosecution of Rapists. Westport: Praeger.Google Scholar
Matoesian, Gregory (1993) Reproducing Rape: Domination through Talk in the Courtroom. Chicago: Univ. of Chicago Press.Google Scholar
Matoesian, Gregory (2001) Law and the Language of Identity: Discourse in the William Kennedy Smith Trial. Oxford and New York: Oxford Univ. Press.Google Scholar
Messerschmidt, James (1993) Masculinities and Crime: Critique and Reconceptualization of Theory. Lanham: Rowman & Littlefield.Google Scholar
Mulla, Sameena (2014) The Violence of Care: Rape Victims, Forensic Nurses, and Sexual Assault Intervention. New York: New York Univ. Press.Google Scholar
Nagle, Jacklyn, Brodsky, Stanley, & Weeter, Kaycee (2014) “Gender, Smiling, and Witness Credibility in Actual Trials,” 32 Behavioral Science and the Law 195–206.CrossRefGoogle ScholarPubMed
Orenstein, Aviva (2007) “Special Issues Raised by Rape Trials,” 76 Fordham Law Rev. 1585–608.Google Scholar
Patton, Michael (1990) Qualitative Evaluation and Research Methods. Newbury: Sage Publications.Google Scholar
Powell, Amber, Hlavka, Heather, & Mulla, Sameena (2017) “Intersectionality and Child Credibility,” 31 Gender & Society 457–80.CrossRefGoogle Scholar
Schafran, Lynn Hecht (1995) “Credibility in the Courts: Why is There a Gender Gap?,” 34 The Judges’ J. 1.Google Scholar
Stoecker, Randy (1991) “Evaluating and Rethinking the Case Study,” 39 The Sociological Rev. 88–112.CrossRefGoogle Scholar
Strauss, Anselm & Corbin, Juliet (1998) Basics of Qualitative Research: Techniques and Procedures for Developing Grounded Theory. Thousand Oaks: Sage Publications.Google Scholar
Taslitz, Andrew (1999) Rape and the Culture of the Courtroom. New York: New York Univ. Press.Google Scholar
Uncel, Megan (2011) “Facebook is Now Friends with the Court: Current Federal Rules and Social Media Evidence,” 52 Jurimetrics 43–69.Google Scholar
Van Buskirk, Eric & Liu, Vincent T. (2006) “Digital Evidence: Challenging the Presumption of Reliability,” 1 J. of Digital Forensic Practice 19–26.CrossRefGoogle Scholar