The role of emerging communication technologies in experiences of sexual violence: A new legal frontier?
Frontier a region that forms the margin of settled or developed territory (Merriam-Webster)
The challenge presented by the interface between emerging communication technologiesa and sexual violenceb experienced by young peoplec is not primarily a legal one. That is, if there is a new frontier, the edges are not only to be found between the law and its limits, but also between online and offline modes of sociality.
This is the message that came through from in-depth interviews conducted with 46 key informants from criminal justice agencies (including police and prosecutions), judicial offices, education and youth policy organisations, youth advocacy services, and sexual assault services. These interviews asked participants how they saw emerging communication technologies as facilitating sexual violence. Additionally, participants were asked to identify what challenges such interfaces presented to the Victorian criminal justice system's ability to respond.
This report presents the findings of an 18-month project undertaken by the Australian Institute of Family Studies (AIFS), which was funded by the Victorian Legal Services Board Grants Program. It reports on participants' views in relation to:
- the effects of technology on the lives of young people;
- the interface between emerging communication technologies and experiences of sexual violence; and
- what factors enable or hinder appropriate legal responses.
Purpose of the research
Prior to undertaking this project, ACSSA held a stakeholder forum with people in key sectors - including sexual assault services, and the education, criminal justice and youth sectors - to explore the issues and challenges of technology-facilitated sexual violence. One issue that arose was the adequacy and applicability of the law in this environment. The purpose of the research was to explore this in greater depth in order to support legal and other relevant actors to respond to technology-facilitated sexual violence. Specifically, the project aimed to:
- increase knowledge about the use of emerging communication technologies in the facilitation of sexual violence against young people;
- identify the challenges and evidentiary opportunities that the use of technologies present to the legal system's ability to investigate and prosecute sexual violence; and
- identify possible strategies for addressing these challenges.
There is little research that specifically examines the intersection of technology and sexual violence. However, there is an emerging evidence base that documents the risks young people take when using online and other communication technologies such as mobile phones.
The project used an inductive, qualitative research design to explore participants' views about the role of social networking services and mobile phone technology in sexual violence perpetration. The planned data sources included:
- international literature on the use of social networking and mobile phone communication to perpetrate and promote violence;
- legal scholarship on prosecuting these behaviours;
- relevant media case studies;
- stakeholder consultation, in the form of a roundtable discussion;
- interviews with young people about their experiences of sexual violence involving communication technologies; and
- interviews and focus groups with key informants.
The research involved a number of distinct qualitative methods to gather the insights of key stakeholders. In the first instance, the research team held a roundtable meeting that brought together practitioners and researchers from the justice, policy, education and academic sectors to discuss current thinking and concerns. The information gathered in this forum assisted researchers in identifying relevant participants for subsequent focus groups and interviews. The recruitment of these participants involved a multi-stage process. Ultimately, researchers were able to recruit 46 professionals from criminal justice agencies (including police and prosecutions), judicial offices, education and youth policy organisations, youth advocacy services, and sexual assault services for participation. The semi-structured interviews involved both broad, context-related questions and more specific questions based on the information that emerged during the interview process (Bryman 2004). The broad themes of the interviews were:
- Issues: What sort of issues are you seeing in relation to the use of emerging communication technologies in sexual assault?
- Action: How are you responding to this?
- Challenges: What are the key gaps or challenges in preventing or responding to the use of emerging communication technologies in sexual assault?
- Information needs: What information would assist you in the work that you do?
All interviews and focus groups were audio-recorded by consent. Each interview was between 30 and 60 minutes in duration. The decision to audio-record the interviews related to the semi-structured nature of the interview, in which narratives were allowed to develop, and the participants were active in constructing the content and direction of the interview itself. Each interview and focus group was subsequently transcribed by a transcription service, undergoing a process of de-identification prior to analysis.
It is important to note that the views of young people themselves are absent in this study. Significant challenges arose for researchers in recruiting this key participant group, and we made revisions to the methodology where appropriate. Nonetheless, a variety of challenges to this aspect of recruitment continued to be experienced.
Each transcript was read individually to identify key themes and issues. The transcripts were then crossed-referenced for shared insights. In addition to thematic analysis, the transcripts were read for clear and detailed narratives that would provide insight into the experiences of young people and the professionals responding to technology-facilitated sexual violence. This secondary reading was viewed as essential in capturing the diversity of behaviours and experiences occurring in this space.
Effects of emerging communication technologies on young people's social interactions
Participants in this research identified several key ways that emerging communications technologies are affecting the socialisation of young people. Broadly, participants described young people's engagement with emerging communication technologies as an essential method of socialisation, creating a space for the exploration and construction of the social self. However, participants identified a number of aspects and qualities of emerging communication technologies that also provide increased opportunities for the experience of sexual violence. Broadly, these can be described in terms of accessibility and the online/offline social spheres of young people:
- Accessibility: Participants spoke of the ubiquitous nature of emerging communication technologies in terms of:
- blurred boundaries between social settings, especially between public and private domains (for example, school and home life);
- the constancy of contact that these technologies afford;
- the increased accessibility afforded to adults seeking sexual contact with young people; and
- increased access to pornography by young people.
- Online/offline social spheres: Participants felt that the fluidity between online and offline social spheres was a core feature of young people's lives. Specifically, participants identified:
- the centrality of online sociality to young people's interactions;
- the blurring between online and offline domains;
- young people's limited understanding that online communication has offline ("real world") consequences;
- the anonymous nature of online spaces, which enables different forms of communication, including harmful and abusive behaviour; and
- the generation gap between adults and young people in relation to these spaces.
These factors were seen to change the consequences of online exploration and the construction of the social self for young people. Further, the elements of accessibility, especially in relation to pornography and the nature of social media were understood to normalise a particular sexualised interaction between young people, including the practice of "sexting". Specifically, this normalised behaviour was seen to create different experiences for young men and young women, reinforcing a dynamic whereby young women experienced increased pressure and expectations in relation to sexual requests from young men.
The role of merging communication technologies in facilitating sexual violence
We asked participants about the ways in which emerging communication technologies were used to facilitate or perpetrate sexual violence. From our analysis, the behaviours and experiences described by participants were categorised with reference to their proximity to acts of sexual violence; that is before, during and after.
The use of technology prior to acts of sexual violence was multifaceted. It included:
- increasing access to young people (as noted above);
- hastening the relationship and trust-building process;
- using network linkages to connect with people with whom the perpetrator may not otherwise have a direct relationship; and
- saturating social networking sites with friend requests and utilising multiple profiles to eventually make contact.
During acts of sexual violence, technology was identified as being involved in:
- recording sexual assaults;
- making threats to distribute images or videos; and
- distributing images or videod without the consent of the other person.
In the aftermath of sexual assault, technology was used to:
- make threats to distribute or upload images;
- distribute images, including images depicting victimisation: and
- contact, threaten or abuse victims following the assault.
Responding to technology-facilitated sexual violence
Overall, participants considered the current legal framework to be adequate for addressing most forms of sexual assault in which technology is a factor. However, all participants articulated that the application of legal responses could be enhanced in the future. Specifically, participants identified a range of issues in relation to the capacity to respond. Many of these issues related to the ever-evolving nature of emerging communication technologies, issues of multi-jurisdictional investigations, and resources relating to adequate training and facilities.
Specific inhibitors in current legal practice included:
- keeping up with changes in emerging communication technologies, including the speed with which images are distributed;
- the volume of evidence collected;
- the involvement of global or offshore companies, which makes it difficult to issue warrants and obtain material;
- a lack of expertise and facilities to undertake investigations; and
- the technological limitations of courtrooms when trying to view evidence relating to emerging communication technologies.
The lack of standardisation across state and territory legislation, including admissibility rules, also emerged as an issue.
There was a lack of clarity about the effectiveness of responses to behaviours that have not generally resulted in formal justice intervention. On these matters, some participants spoke of a lack of clarity about whether police responses are based on discretionary decisions or inconsistent decisions. Yet others acknowledged the need for flexibility to ensure that young people are not inappropriately charged.
In relation to current educational practices addressed at young people, participants spoke of inadequate education resources, inconsistent education programs and messages, and the sense that safety messages do not resonate with young people.
Implications of the findings
Participants consistently stated that emerging communication technologies acted as a facilitator of forms of behaviour that predate the existence of the technology itself.
Concomitantly, it is acknowledged that the ubiquitous position of emerging communication technologies in young people's lives potentially increases their exposure to negative behaviour from peers and adults. Additionally, the culture of this technology espouses gendered expectations and pressures that are concerning. Thus, the interface between emerging communication technologies and sexual violence is a complex and complicated site.
The conceptual conflation
Our research found that a lack of clarity about how the range of behaviours should be conceptualised has hampered the development of appropriate and effective responses. Further, we found that a misunderstanding of the social experiences of young people created the potential for the replication of misconceptions about sexual violence more generally. There were disjunctions and contradictions in terms of how participants understood the relationship between sexual violence and emerging communication technologies. For example, although there was agreement that the criminal law is a limited and blunt instrument for intervention with young people, the issue of sexting created a lot of "noise" in participants' views of (a) just how emerging communication technologies interfaced with experiences of sexual violence; and (b) what sort of challenges this presented for the criminal justice system. We think that this stems from an absence of, or lack of clarity on, a shared conceptual framework in which to locate the behaviours.
This had flow-on effects in relation to practical avenues of intervention, such as legislation, educational interventions and opportunities for industry involvement. The conceptual conflation outlined above was reflected in what participants told us about the challenges in responding to the full spectrum of sexual violence behaviours involving communication technologies, and in determining when the formal criminal justice system should become involved (as opposed to police involvement, which may result in more diversionary responses).
The importance of a conceptual framework
In order to address this and create a platform for the development of a targeted and meaningful response, we suggest that sexual violence facilitated by emerging communication technologies needs to be understood in terms of a spectrum of behaviour.
Specifically, we suggest that this conceptualisation needs to account for:
- the context or situation in which the behaviour occurs, in order to take into account the fact that interactions utilising emerging communication technologies can be consensual, exploitative, coercive or violent;
- the enablers or facilitators to the behaviour itself, including that interactions utilising emerging communication technologies occur in a social environment with pre-established gendered expectations and cultural scripts that normalise pressure and coercion;
- the importance of emerging communication technologies in young people's socialisation practices, which ensures an increased accessibility and their vulnerability to motivated offenders; and
- a response continuum that includes primary, secondary and tertiary intervention in light of the above. Of prime importance should be a focus on preventative education that addresses the broader social environment in which young people operate, and attends to the gendered nature of their interactions. With reference to tertiary responses, sufficient discretion must be employed to allow for the context of the behaviour to dictate sanctions (particularly with respect to the application of the criminal law).
A number of clear practical implications for those tasked with responding to technology-facilitated sexual violence can be identified within this research in terms of both educative and tertiary responses. While there is legislative capacity to address unwanted and violent sexual behaviour facilitated by emerging communication technologies, the discretionary application of the criminal law requires clarity and consistency. In particular, participants advocated for a more consistent application of police discretion with reference to charge decisions, and suggested that the applicability of child pornography legislation to young people be reviewed.
In addition to the adequate training and resourcing of police for investigative purposes and the facilitation of evidence presentation at trial, noted above, this research identified the need for an extensive approach to education on the issue of technology-facilitated sexual violence. Adequate resources are required to effect a consistent and ongoing educative strategy. Participants viewed the educative response as needing to be multifaceted - involving young people, parents, schools and relevant industries - and multi-layered - addressing issues of respectful relationships and conduct between young people, and ethical digital citizenship. The effect of such an approach would centralise notions of having strength and confidence in interpersonal relationships and the consideration of others in interactions based on emerging communication technologies. Further, this research suggests that this strategy must be reflexive and incorporate the views of young people.
In sum, participants' views suggest that it is important to clarify the frameworks currently used to describe the interface between communication technologies and sexual violence, as this affects the capacity for professionals and services to respond. Their views also suggest that an educational response is key, particularly in relation to gendered expectations, respectful and ethical relationships, and responsible digital citizenship.
a The term "emerging communication technology" is used throughout this report to refer to modes of communication that are ever-evolving in nature. It is a necessarily imprecise term that includes both devices (for instance, computers and mobile telephones) and associated platforms of communication (for instance, social networking sites and text messages).
b "Sexual violence" broadly refers to unwanted sexual interaction, or threats of such interaction (such as sexual intercourse, sexual touching or sexual exposure), in circumstances of non-consent and/or force, threat, incapacitation or blackmail. It is important to state for the purpose of this report that the creation of nude or sexually explicit images of oneself or of another person does not in itself constitute sexual violence.
c For the purposes of this research report, we are defining "young people" as those being between 12 and 25 years of age. Stakeholders and reference group members felt that the issues were particularly salient for the younger bracket of approximately 13-16 years.