Post or Prosecute?

Facebook, the Criminal Justice System and Sexual Assault Victims’ Needs

In recent years, social media have become a dominant arena for sexual assault victims to participate in the discourse on sexual violence and the social response to it. This collaborative discourse space allows victims of sexual assault to reveal their stories of victimization and stimulate public discourse about the (dys)function of the criminal justice system. This Article explores empirically, for the first time, how sexual assault victims who participated in the online discourse on Facebook about sexual assault perceived the capacity of social media to meet their needs compared to that of the criminal justice system. Findings are based on 499 responses to an online survey circulated on Israeli Facebook pages in 2016, the year before the launch of the #MeToo movement. The survey asked respondents to rank the subjective relative importance of eighteen potential therapeutic, criminal justice-related, personal, and social needs of sexual assault victims. It also asked respondents whether Facebook and the criminal justice system have the potential capacity to address each of the eighteen needs.

Findings show that, generally, the level of appreciation of the criminal justice system was low and that it was perceived as unable to adequately address any of their needs. Its capacity to address therapeutic needs was perceived as lowest, but respondents reported that the criminal justice system was incapable of addressing even needs that are at the heart of the criminal justice enterprise and directly relate to its formal goals, such as incapacitation, deterrence, and severe punishment. By contrast, most respondents perceived Facebook as capable of providing adequate responses to therapeutic needs. Comparison of the scores achieved by each mechanism shows that the perceived capacity of Facebook to address victims’ needs was valued higher than that of the criminal justice system in thirteen of eighteen needs, most of them therapeutic. The only needs that the criminal justice system was perceived to address better than Facebook were those associated with the assailants’ accountability. We also checked whether social media and the criminal justice system substitute or complement each other and found a moderate level of complementarity between them. Overall, the perceived weighted capacity of Facebook to address the needs of victims was more than twice that of the criminal justice system. The gaps in how victims appreciated the different ways in which the two mechanisms met their needs shed light on the forces underlying the #MeToo movement.

Findings also reveal that neither channel can fully address the needs of sexual assault victims. Each mechanism appears to meet some needs better than the other and to have its relative limitations. Victims deserve more than one path available to justice. Our findings show that instead of renouncing the criminal justice system as a relevant arena where victims can seek justice, we should reexamine how to improve its performance for victims by learning some lessons from social media platforms.

* Helen Diller Institute Visiting Professor, UC Berkeley Law School (2021–2023); Professor of Law and former Associate Dean for Research, Bar-Ilan University Faculty of Law; Co-Chair, The Israeli Criminal Law Association.

** Senior Vice President, Compass Lexecon.

*** Director, The Center for Law and Media, Bar-Ilan University Faculty of Law.

We’d like to thank, first and foremost, the brave victims/survivors who were willing to open their hearts and share their thoughts with us by participating in this study. We are grateful to Tami Kricheli-Katz and Ariel Porat for valuable suggestions during early stages of the study, and to Maya Ben-Ami, Mor Hogeg, Shahar Israel, Reva Kale, Nina Salameh, and Nurit Wiemer for excellent assistance in various parts of the project. We also wish to thank Marty Berger, Vincent Chiao, Aya Gruber, Sarah Lageson, Itay Ravid, David Sklansky, Deb Tuerkheimer, and the participants of the UC Berkeley School of Information Dean’s Lecture, the Center for the Study of Law and Society at UC Berkeley School of Law, the Law and Society Forum at Stanford Law School, the Loyola Los Angeles Law School Faculty Seminar, the Bar-Ilan University Faculty Seminar, the University of Tilburg Faculty of Law, and the CrimFest 2022 for helpful conversations and comments along the various stages of the project.

The full text of this Symposium is available to download as a PDF.