How lawyers can use happy Facebook pictures to discredit rape victims.

WARNING: This post deals with rape and sexual assault, and may be triggering for some readers

Think about all the images you post of yourself and your life on social media. There probably aren’t many of you crying. Or looking depressed. None of your dark moments or your problems. None of you at home doing nothing on a Saturday night, right?

It’s all shiny happy smiley selfies of you at your best and brightest. With friends. On holidays. Having fun.

Now imagine someone using them to disprove your claim that you’d been traumatised by a sexual assault. Imagine your attacker’s legal team forcing you to show them all your photos and posts from all your social media accounts, privacy settings be damned. Imagine them using these smiling photos to ‘prove’ that you’re not REALLY a victim here. You haven’t REALLY suffered. Because if you had, you wouldn’t be taking a surfing lesson now WOULD YOU?

Welcome to the ugly way victims are being re-victimised in 2015.

A teenage rape victim, who was sexually assaulted multiple times by her high-school Spanish teacher, has suffered a further indignity, as school officials in Long Island, New York, have attempted to use images found on the victim’s Facebook account to discredit claims that she suffered emotional distress following the assaults.

The then 15 year-old-girl known as ‘Melissa’ was repeatedly sexually assaulted in 2006 by her teacher, Danny Cuesta, who later admitted to the abuse, and served a 15-month jail sentence. (During his trial two other female students also came forward to testify that Cuesta had assaulted them too.)

Melissa has since sought damages from her perpetrator, the school district, and school officials, for “emotional distress” resulting from repeated sexual injury and assault.

In response, lawyers for the school district then commenced a fishing expedition, trawling through Melissa’s Facebook feed, searching for “evidence” that she was not as traumatised as she claimed. There they found the shocking “proof” they were looking for: an image of Melissa rock climbing.

Melissa was discredited for looking “too happy” on Facebook.

This, the lawyers concluded, was hard evidence that Melissa had not seriously suffered as a result of the rape and sexual abuse, and was in fact, now thriving.

For Melissa, things were only about to get worse, as lawyers unearthed one image of Melissa socialising with friends; another image of her with her boyfriend; and, most damning of all, an image of Melissa working at a Veterinary clinic. Quelle horreur!

And because this (highly-edited and brief) depiction of Melissa’s life didn’t marry perfectly with what school authorities thought a victim’s life should look like (why sad girl no crying all time? why photos no in grey-scale?), they then concluded that Melissa’s life must not have been adversely affected by the rape at all.


Then, just last month, another development in the case, as a court ordered Melissa to hand over every single status update, wall message, video, and image that she has ever posted on her Facebook account (so that defence lawyers may further comb for evidence of her failing to behave like they think a depressed rape victim is supposed to).

According to Karen Willis, executive officer of Rape and Domestic Violence Services Australia, this will almost certainly “exacerbate the victim’s feelings of powerlessness, and contribute to the invasion of her privacy.”

Be careful what you post to social media. It can now be used against you in court, apparently.

Indeed, if these school authorities (and their lawyers) are permitted to trawl through every candid moment that a teenage rape victim has ever had on social media (all without her consent, and all with the specific intent of using those images and messages against that victim), this will only extend the power dynamic of abuse, exploitation and intrusion, that was established during the original assault.

More to the point though, the entire social media fishing expedition belies a fundamental lack of understanding of what trauma looks like and how it manifests. Not only does trauma present very differently in different individuals, but rape victims are especially unlikely to want to publicly display and document their most vulnerable, painful or shameful moments during the recovery process, and may in fact work even harder than others to project a resilient and positive exterior on Facebook (which, let’s be honest, is already a very confected space, where it’s customary for people to edit and craft the image they want project to others).

According to Karen Willis, “the idea that Facebook is a 24 hour of the day exposure of how a victim is really feeling is ridiculous” adding that it is also completely unhelpful and inaccurate to assume “that if a person doesn’t fit a particular picture, then they’re not a victim.”

Of course it’s not the first time that defence lawyers have tried to insist that sexual assault victims ought to look and behave in very particular ways if they are to be taken seriously.

Nor is this the first time that a school’s defence team have tried to pry into the private life of a former student in order to cast doubt on the seriousness of a sexual assault.

In 2001, a 15 year-old-student from Tara Anglican School for Girls in Sydney was allegedly gang-raped by four men, while on a school trip to Italy.


“Four of them took me and pinned me down on the bonnet of the car,” the girl would later tell a court.

“They took turns raping me and two of them were watching from the side of the car… just watching and laughing.”

The alleged assault was interrupted by police, who took the girl back to her hotel. But according to court documents, when the girl told the four teachers and two parents who were supervising the trip what had happened, a male teacher allegedly told her: “You don’t look as if you have been raped. You’re sitting down all right”

Even more appalling, in 2003 when the girl’s family sued the school for failing to provide adequate supervision during the trip, the school’s defence responded by paying a private investigator to obtain secret surveillance footage of the now 18 year-old woman wearing a short skirt and drinking alone at a bar as she waited for friends.

The school’s lawyers then attempted to leverage the video surveillance to cast doubt on the rape claims, insinuating that a true rape victim wouldn’t be out partying two years after a rape (or worse, insinuating that a woman who enjoys drinking and wearing a short skirt was probably ‘inviting’ violence to begin with.)

Following immense public backlash, Tara Anglican School eventually settled out of court for an undisclosed amount.  But the young woman’s father said he could never forgive the school for the way it treated his family and that he found the defence’s use of video surveillance footage particularly appalling.

What this and so many other cases illustrate, is that defence lawyers have a long and grubby history of delving into the private lives of victims in an attempt to ‘slut-shame’ and silence them.

Melissa’s case is, in many ways, the latest iteration of a much older problem: in the past, lawyers defending in a rape case may have used a woman’s sexual history against her.

Now they use her social media history too.

The difference, of course, is just how powerful that tool is in opening up sensitive information which can be cherry-picked by those attempting to create a prejudicial narrative against victims.

And sadly, until the courts and the public develop a better understanding of how trauma really manifests, it is a tool we are likely to see be exploited.


If this post brings up any issues for you, call Lifeline on 13 11 14.