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Social Media as a Defense Source for Sex Crimes

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Court allows defendant's use of victim's social media account postings to refute allegations of rape despite Rape Shield Law.

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By Attorney Elisabeth K.H. Pasqualini, Sex Crimes Defense Lawyer, Harrisburg, PA

I had previously blogged on this issue, when I discussed the possible importance of obtaining victim statements from social media accounts, such as Facebook, Twitter and MySpace.  (See link to blog article).  With the advent of social media in our every day lives, it has become a futile ground for victim statements that either impact a victim's credibility (photos and discussions with others) or may serve to exculpate a defendant entirely, as in the case of Commonwealth v. K.S.F., 2014 Pa. Super. LEXIS 3428, 2014 PA Super 225 (Pa. Super. Ct. 2014).

The Court had to engage in a balancing test between the Rape Shield Law (see link to blog article) that generally protects the victim of a sexual assault from having their reputation smeared by past allegations of sexual impropriety or promiscuity and the right of a defendant to challenge the past statements of the victim that tend impeach credibility.  In this case, the victim had posted on Facebook that she was a "virgin."  This was after the alleged incident involving the defendant, her stepfather.  The Court noted that the Rape Shield Law bars a wide range of evidence, however, it must yield to certain constitutional considerations implicating the rights of the accused.

The Balancing Test under Black:

  1. Whether the proposed evidence (Facebook post) is relevant to show bias of motive to attack credibility;
  2. Whether the probative value outweighs the prejudicial effect; and
  3. Whether there are alternative means of proving bias or motive to challenge credibility.

The Superior Court ultimately held that there was no prejudice against the victim in using the Facebook post to impeach her credibility.  Further, the jury could assess the credibility of the statement as to what the victim meant when she said "virgin." 

An Issue for Future Discovery Requests to the Prosecutor?

Interestingly, the Court, because it decided the case on the balancing test, did not reach an issue under a mandatory duty of the prosecution to disclose exculpatory evidence under the Brady rule.  That rule provides that "the suppression by the prosecution of evidence favorable to an accused upon request violates the due process clause where the evidence is material to either guilt or punishment irrespective of the good faith or bad faith of the prosecution."  A Brady violation occurs if:

  1. The prosecutor has suppressed evidence (failed to turn it over to the defense);
  2. The evidence, whether exculpatory or impeaching, is helpful to the defendant; and
  3. The suppression prejudiced (affected the outcome of the trial) the defendant.

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