Title IX in the Technological Age--Challenging Rape Culture and Myths Through Fairer Use of Electronic Communications

Abstract

Electronic communications are critical pieces of evidence in both civil and criminal legal proceedings. This is especially so in cases where decision makers are charged with determining the truthfulness of conflicting accounts of events. One area of the law where this frequently occurs is cases involving sexual assault, where a survivor’s account of lack of consent to sex can be challenged by an alleged perpetrator. Electronic communications have tremendous potential to aid decision makers in this task because these communications offer certain insights into the unfolding of events that were not available before communications were “datafied” to such an extent. In theory, certain electronic communications documented during the time leading up to an assault, during the assault itself, or after the assault, could help corroborate the survivor’s account, including whether or not there was consent. However, these electronic communications also serve as a window into psychological trauma responses and generational communication habits that are frequently misunderstood by investigators, decision makers, and the public. As a result, electronic communications can also be used to distort events—and particularly the behavior of survivors in response to the trauma—through the perpetuation of rape myths that inhibit justice.

This article analyzes as a case study the heavily publicized alleged sexual assault committed by a University of Montana football player, as recounted by author John Krakauer's in his book “Missoula.” The degree to which this case documents the role of electronic communications in sexual assault cases makes it a valuable case study for analyzing how such communications affect the presentation of a case and influence juries, as well as the ways in which such communications can be used to discredit survivors of sexual assault through the perpetuation of rape myths.

After an Introduction, Part II introduces this case study and examines how electronic communications can be used in criminal sexual assault cases. Part III contrasts the criminal setting with the parallel Title IX setting, analyzing the different goals, challenges, and opportunities present in each. Part IV argues that, in light of these differences, higher education institutions have access to a greater number of electronic communications that could help paint a more complete and factually and scientifically accurate picture of events. Part V identifies the ways in which the Title IX setting can leverage better-suited decision makers operating under a lower burden of proof to make fairer use of electronic communications in sexual assault cases. Part VI concludes that one reason to retain Title IX’s lower standard is that it allows more room for some degree of the inevitable uncertainty that accompanies new technologies, in a setting where those technologies are adopted at high rates. This analysis captures only a small portion of the efforts needed to combat broader rape culture, and depends on continued Title IX enforcement and oversight in the face of the Trump Administrations efforts to weaken federal guidance and oversight. If campuses can overcome the challenges and embrace the opportunities identified in this essay by making fairer use of electronic communications, it could prove to be a helpful tool in making progress on these important fronts throughout the criminal justice system and in society.

Keywords: Title IX, criminal law, technology, technology law, communications, communications law, electronic communications, evidence, sexual assault