Trigger warning: This post addresses acquaintance rape and victim blaming.

I read this February 17 Chronicle of Higher Education article with interest about the use of texts and emails in rape cases, especially the bit about facing the “court of public opinion”: In Rape Cases, Students’ Texts and Emails Face the Court of Public Opinion. The title caught my attention because I was curious about the rhetorical use and purpose of those texts and emails — and especially who the sender of the messages was, the victim or the defendant.

Here’s how the article framed the issue:

Because of the nature of the crime, campus rape cases can be complicated for colleges to adjudicate. In the absence of witnesses or physical evidence, determining whether an accused student is responsible is often a matter of weighing one party’s word against another’s.

But what happens when the words they exchanged privately — emails or texts or Facebook messages, for example — are posted online for anyone to see?

In recent weeks, national news outlets have published two accounts of campus rape cases that drew on the individuals’ electronic correspondence, before and after the alleged rape, in an effort to characterize their relationships.

The article title suggests that the “texts and emails” faced the court of public opinion, but of course what the article is really reporting — what the article writers are really reporting — is that electronic conversations between the defendant and the victim, both before and after the rape, were released or uncovered in public spaces by national news outlets in reports about these two cases.

I’m focusing on the human agents and the words, rather than the medium and the location, as I engage with this text because I think the article too quickly objectifies both the messages and the humans in the story. And to be clear, the victim is the only one really “fac[ing] the court of public opinion” in this article.

The defendant is not facing that same court of public opinion. At least, the defendant’s words are not really the issue. Maybe, if the relationship had been verbally abusive in public, there might be reason to use those words against the defendant. But if we take this article at face value, the defendant’s words are not really the ones being weighed. The victim’s words are. The only quoted words in the article from any of those texts or emails are those sent by a victim “more than a month after the incident” that read, “I love you Paul. Where are you?!?!?!?!”

The article writers explain the presence of a victim’s words with this paragraph:

As the two cases illustrate, private statements can be used to support vastly different interpretations of an incident—or a relationship. Further complicating matters is that dealing with the aftermath of a traumatic episode can cause a victim’s behavior to seem erratic.

As readers, we are limited to two options for understanding these words:

• They represent a relationship that is healthy and could not possibly be related to an abusive relationship of rape, OR
• They are evidence of the erratic behavior of the victim.

As I read and reread this piece, I am amazed that the authors actually wrote “dealing with the aftermath of a traumatic episode can cause a victim’s behavior to seem erratic.” Because the consequence is that we must either consider the victim a liar or as a person behaving erratically.

Not as a victim of rape.

Not as someone who has suffered.

Not as a person.

Not as a human.

This is the consequence of binary thinking, of framing our understanding of an issue within dichotomous, or even semi-dichotomous, options. We limit ourselves to thinking in programmatic dichotomies, like if/then statements, rather than in complex, nuanced human terms. We objectify those who are in desperate need of being recognized as human and hurting.

The article concluded with the following quotes, which so anger me that I can hardly think straight.

It would be “remarkably irresponsible” not to consider digital communication between a victim and a perpetrator in a hearing, says Allyson Kurker, a lawyer who helps colleges investigate sexual-assault complaints. But not all digital communication can be given the same weight, she says.

“I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those,” she says. If a woman is saying things like “It’s OK” or “I’m fine,” says Ms. Kurker, “they don’t mean anything except the person just doesn’t want to deal with the situation right now.”

But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. “It doesn’t make sense,” she says, “that they would be exchanging flirty text messages after that time if something had gone wrong.”

As I read Kurker’s words, there are only two conclusions the court of public opinion can draw when attempting to reconstruct the impossibly complicated rhetorical exigence that produced conversations between defendant and victim: Victims are either lying or flirting.

• If victims say “It’s OK” or “I’m fine” immediately after the rape, either they weren’t raped (so they lied about being raped) or they were raped and they aren’t really okay (so they are lying).
• If victims are “exchanging flirty messages” with a defendant weeks after the rape, either they are actually flirting and weren’t raped (so they lied about being raped) or they were raped and they are acting erratic (meaning they are living a lie).

Kurker’s closing words are deeply disturbing. In essence, by flirting, maybe acting as if everything is normal weeks after a rape, the victim is demonstrating that the rape could not have taken place.

If you have ever met someone who has been raped by an acquaintance or someone known to the victim, I challenge you to find evidence that the relationship is not being presented as anything but normal — and yes, maybe even flirty. When a victim knows the rapist, when the rapist and the victim have an existing relationship, how can we possibly expect anything but attempts to maintain some sense of normalcy?

That’s not erratic behavior. That’s survival. And a victim should not be indicted for surviving.