In modern sexual assault prosecutions, text messages and social media communications have become critical evidence. Both Crown prosecutors and defence lawyers scrutinize digital communications before, during, and after alleged sexual assaults to understand what happened and whether consent existed. But can text messages actually prove consent?
The Role of Digital Evidence in Sexual Assault Cases
Nearly every sexual assault case now involves extensive digital evidence:
- Text messages between accused and complainant
- Social media messages (Instagram, Snapchat, Facebook)
- Dating app conversations (Tinder, Bumble, Hinge)
- Emails
- Photos and videos
Police routinely seize phones, download their contents, and analyze communications for evidence supporting or contradicting the complainant’s allegations.
What Text Messages Can Show
Digital communications can provide crucial context about:
Before the incident:
- Whether sexual activity was discussed or planned
- The nature of the relationship
- Consent negotiations or discussions
- Intoxication levels (references to drinking or drug use)
- Plans to meet up
During the incident:
- Real-time communications suggesting consent or lack thereof
- Requests to stop that were ignored
- Expressions of enthusiasm or reluctance
After the incident:
- The complainant’s immediate reaction
- Whether the complainant expressed distress
- Friendly or flirtatious communication suggesting consensual experience
- Accusations or confrontations
- Threats or attempts at damage control
“Text messages are powerful evidence in sexual assault cases, but they rarely provide definitive proof of consent or lack thereof. Instead, they provide context that supports or undermines the parties’ competing narratives,” says Toronto sexual assault lawyer Alexander Karapancev from Karapancev Law.
Messages Supporting the Defence
Defence lawyers look for communications showing:
Ongoing friendly relationship:
- Continued friendly or flirtatious texts after the alleged assault
- Plans to meet again
- Expressions of affection or intimacy
- No indication of distress or trauma
Explicit discussions of consent:
- Messages confirming willingness to engage in sexual activity
- Negotiations about what activities would occur
- Enthusiasm about planned encounters
Contradictions with complaint:
- Messages contradicting the complainant’s timeline
- Evidence of fabrication motive (custody disputes, relationship conflicts)
- Communications showing complainant was less intoxicated than claimed
Example: A complainant claims she was too intoxicated to consent at 11pm. Defence produces texts she sent at 11:30pm that are coherent, grammatically correct, and discuss detailed plans—suggesting capacity to consent.
Messages Supporting the Crown
Prosecutors use communications showing:
Immediate distress:
- Messages to friends immediately after describing trauma
- Expressions of violation or non-consent
- Requests for support or help
Confronting the accused:
- Messages asking “why did you do that?”
- Accusations of non-consensual activity
- Demands for explanation
Threats or manipulation by accused:
- Messages pressuring the complainant not to report
- Attempts to manipulate the complainant’s account
- Implicit admissions of wrongdoing
Example: Within an hour of the incident, the complainant texts a friend: “I kept saying no but he wouldn’t stop. I’m so upset.” This strongly supports her complaint.
The Limitations of Text Messages
Digital communications rarely provide conclusive proof because:
Consent is situational: Agreeing to meet up or expressing interest doesn’t constitute consent to specific sexual acts at specific times.
People’s online personas differ from reality: Friendly texts after an assault don’t necessarily mean consent existed—trauma victims often maintain normal communication out of fear, denial, or social pressure.
Context matters: A text saying “come over tonight” doesn’t specify what will happen, whether consent extends to all activities, or whether consent can be withdrawn.
Timing is crucial: Post-incident friendly texts might reflect:
- Delayed trauma processing
- Fear of confrontation
- Social conditioning to be nice
- Genuine consensual experience
Courts cannot assume friendly post-incident communication means consent existed.
The Consent Cannot Be Retroactively Granted Principle
Canadian law is clear: consent must exist at the time of the sexual activity. Post-incident communications cannot retroactively create consent that didn’t exist.
Even if someone texts “I had a great time” afterward, if they didn’t actually consent during the activity, sexual assault occurred. The friendly text might reflect:
- Fear of the accused
- Confusion about what happened
- Social conditioning
- Denial or minimization
Fabrication and Motive Evidence
Text messages sometimes reveal motive to fabricate:
- Custody disputes
- Divorce proceedings
- Revenge for infidelity or breakup
- Financial motives
- Immigration benefits
Example: Messages showing the complainant threatened to “ruin” the accused after discovering infidelity may support a defence of fabrication.
However, courts are cautious about these arguments—most sexual assault complaints are genuine, and suggesting fabrication requires strong evidentiary foundation.
The Dangers of Accused Communications
Accused persons often make devastating mistakes in post-incident texts:
Apology messages: “I’m sorry if I hurt you” or “I shouldn’t have done that” can be interpreted as admissions of non-consensual conduct.
Minimization: “It wasn’t that bad” or “You seemed into it” can suggest the accused knows wrongdoing occurred.
Threats or pressure: Messages pressuring the complainant not to report are catastrophic for the defence.
Explanations: Detailed explanations of “what really happened” often contradict later defence positions or contain inadvertent admissions.
CRITICAL: Never communicate with complainants after allegations arise without legal advice. These communications are almost always harmful to the defence.
Strategic Use by Defence Counsel
Experienced defence lawyers carefully analyze communications to:
- Identify exculpatory evidence
- Expose inconsistencies in the complainant’s narrative
- Establish alternative explanations for the incident
- Support consent defences or honest but mistaken belief in consent
- Demonstrate motive to fabricate
Digital evidence must be presented strategically during cross-examination and closing arguments.
The Bottom Line
Text messages are powerful evidence in sexual assault cases, but they rarely provide definitive proof of consent or non-consent. Instead, they provide context, support credibility assessments, and either strengthen or undermine the competing narratives.
Consent is about what happened during the sexual activity—not what was texted before or after. However, communications provide crucial windows into the parties’ states of mind, relationship dynamics, and credibility.
If you’re facing sexual assault charges, your digital communications will be scrutinized intensively. Never delete messages (destruction of evidence is a separate offence) and never communicate with the complainant without legal advice.
Digital evidence can make or break sexual assault cases. Ensure your lawyer thoroughly analyzes all communications to identify evidence supporting your defence.