2. Digital Criminology, Vulnerability Theories and Digital Vulnerability

This chapter centres on the theoretical underpinnings and conceptual vocabulary of the project. Here, I synthesise digital criminology and vulnerability theories to contribute to understandings of digital vulnerability as a framework for interrogating the new social solutions—or harms—that may arise when vulnerable people use remote communication technologies to access to criminal justice.

The chapter begins with an explanation of digital criminology as a critical criminological theory that builds on extant sociological literature to examine the relationships between criminal justice and technologies. Digital criminology provides a structure for critiquing criminal justice technologies and a way to resist dominant techno-solutionist approaches that assume that technologies necessarily solve social problems. In relation to this specific project, digital criminology provides a framework for evaluating remote communication technologies and how they impact, both positively and negatively, the administration of criminal justice and legal experiences of vulnerable individuals. The chapter then surveys vulnerability theory scholarship to show how understandings of vulnerability are contested. Connecting both digital criminology and vulnerability theories gives rise to digital vulnerability as a framework for asking: what new social solutions or harms arise when vulnerable people use remote communication technologies to access justice? Digital vulnerability is a conceptual framework for capturing the convergence of digital communication technologies and vulnerability with criminal procedure. What we will see is how technologies provide techniques of mitigation in supporting some vulnerable individuals’ resilience and access to justice. Conversely, in other cases, remote communication technologies can exacerbate inequalities and diminish vulnerable individuals’ effective participation: techniques of intensification.

Theories and concepts might seem abstract and nebulous. However, they enable the researcher to go beyond the descriptive process of merely recounting the facts or object of research, whether that be observed behaviour, events or other phenomena: through theoretical engagement, the research can be critically analysed rather than just described. Concepts are ‘claims about the nature of the world and the various associations that comprise it’ bundled into a representative term, and they assist in critiquing, interrogating and understanding reality and common properties of behaviour, events or phenomena (Mitchell et al., 2022, p. 653). Such conceptual engagement aids in the next steps of systematic research: articulating and problematising the object of research, identifying patterns and providing explanations, nuanced understandings, meanings, relationships, interpretations, critique and alternative perspectives (Krohn, 2018). For current purposes, criminology has a ‘robust canon of theories’ at hand (Steinmetz & Nobles, 2018, p. 2) that could, potentially, be applied to the digitalisation of criminal justice in the twenty-first century, for instance: strain theory, feminist criminology, actor-network theory, surveillance theory, cultural criminology, amongst others. Can such extant theories be retooled for the contemporary techno-social, cyber or digital contexts? While there is potential for recalibrating such mainstream criminological theories (Marganski, 2018; Yar, 2018), they are perhaps deficient in contextualising lived human experience, social, cultural, gendered and political aspects, structural biases or the ‘multi-dimensional qualities of the phenomena under investigation’ as they interact with emergent technologies (Steinmetz & Nobles, 2018, p. 5). With these potential shortcomings in mind, I adopt an approach that draws on, and merges, the theory of digital criminology with vulnerability theories to arrive at digital vulnerability.

The next conceptual point of reference is that of vulnerability, a contested concept yet one of great significance given that vulnerable individuals are disproportionately affected by criminal justice, as well as by civil proceedings such as guardianship, child protection, immigration detention and mental health tribunals. Here I focus on theoretically derived understandings that demonstrate how the concept of vulnerability is fluid and fraught. While Chapter ‘What Is Vulnerability in Criminal Justice?’ will explain legally derived perspectives on vulnerability, Chapters ‘Remote Vulnerable Witnesses, Complainants and Victims’ and ‘Remote Vulnerable Defendants’ show how judicial officers and legal professionals often have understandings of vulnerability that exceed strict legal definitions.

The starting point within a justice or legal needs context (Newman et al., 2021) is Martha Fineman’s analysis of the vulnerable legal subject. Human vulnerability is ‘universal, constant, and complex’ and also unique to our own physical, economic and institutional relationships and thus experienced individually (Fineman, 2010, pp. 268–9). She differentiates between ‘vulnerable population’, that has a stigmatising ‘air of victimhood, deprivation, dependency, or pathology attached to it’, from her use of ‘vulnerable detached from any specific subgroups’ (Fineman, 2010, p. 266). While the law aspires to treat individuals equally, Fineman (2010) argues that aspiration does not account for the hard fact that not all people are equal, whether that be on the basis of wealth, health, education, employment, social status, housing, race, gender and general life opportunities, amongst many other variables. In her analysis, Fineman raises the tensions between vulnerability, equality, dependency and the ascendent, yet hypothetical, concept of individual autonomy that both underscores legal responsibly and, simultaneously, resists state interference or support.

Vulnerability relates to our fragile corporeality, but it is not limited to bodily harms and Fineman observes that vulnerability can arise from, or be compounded by, institutions and webs of relationships. She posits that vulnerability is ‘the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual’ (2010, p. 255). Vulnerability provides a compelling means to understand inequality and the state’s obligation to respond and protect its citizens, and to ensure the even distribution of opportunities and services from societal institutions. That is, with the recognition of profound inequalities and systemic disadvantage in society, Fineman’s vulnerability necessitates social, institutional and state responsibilities to ‘mediate, compensate, and lessen our vulnerability through programs, institutions, and structures’ and ‘to ensure meaningful equality of opportunity and access’ (Fineman, 2010, p. 269). In the present study, this highlights state responsibilities to provide equitable and meaningful access to justice.

The counterpoint to vulnerability is not invulnerability, which would be impossible, but rather resilience (Newman et al., 2021), that is, the capacity to withstand or overcome adversity. This can be achieved by the state providing resources that build capabilities in vulnerable subjects (Creutzfeldt et al., 2024). Resilience can be addressed through legal protections including ‘law and policy that position vulnerability as the organizing principle and seek to alleviate’ harmful implications (Fineman, 2010, p. 268). Fineman’s specific conceptualisation of vulnerability resonates with my focus on digitalised criminal justice institutions, and how related law and procedure need to ameliorate and compensate for vulnerability, support capabilities and ensure equality of access and opportunity.

There are many scholars who engage with vulnerability theory because ‘vulnerability is a possible effect of any criminal justice’ encounter (Bartkowiak-Théron & Asquith, 2017, p. 285; Fairclough, 2023). Gudjonsson (2010, p. 166) seeks a ‘generic definition’ of ‘psychological vulnerabilities’ applicable to vulnerable witnesses, victims and suspects in police interviews, finding it includes ‘psychological characteristics or mental state which render a witness prone, in certain circumstances, to providing information which is inaccurate, unreliable or misleading’. Gudjonsson (2010, p. 167) also engages with ‘legal competencies constructs’ related to an individual’s functional abilities and capacities. Understanding and identifying these issues is important in recognising how vulnerable individuals may be at a disadvantage when trying to cope with the demands and stresses of the criminal justice system including their abilities to comprehend, make informed decisions and articulate accurate information. Luna (2009) and Ranchordas and Beck (2025) recognise the cumulative, multi-layered aspects and cascading impacts of vulnerability, while eschewing the stigmatising labelling of entire populations as vulnerable.

The Australian case of Anunga v R (1976) establishes the significance of recognising the vulnerabilities of suspects during police interviews (Tudor-Owen et al., 2023) and there is considerable literature regarding vulnerable suspects in police custody (Skinns et al., 2024). In the context of suspects in police detention and citing Brown (2015), Dehaghani (2020, p. 255) states that vulnerability has tended to focus on individual considerations—or ‘deficits’—including innate or ‘natural’ ‘physical and/or personal factors such as childhood, old age, disability, sensory impairment and mental health problems’ as well as more transitory states such as pregnancy. That is, vulnerability is often framed through ‘deficit discourse’, as compared with a strength-based discourse (Fogarty et al., 2018). There are also situational factors or ‘social, economic and living conditions’ (Vironkannas et al., 2020, p. 5) that frame a person’s engagement with criminal procedure. One problem in considering situational factors is that they can suggest a level of perceived rational choice, individual weakness and thereby delineate between the deserving and undeserving (Brown, 2015; Dehaghani, 2020). Situational vulnerability includes experiences of the criminal justice system and incarceration, vulnerabilities that are often overlooked by justice agencies’ guidances (Brown et al., 2017; Fairclough et al., 2023; Tudor-Owen et al., 2023). Moreover, there are the broad environmental and socio-economic conditions, processes and institutions that produce and perpetuate vulnerability, requiring the recognition of the multi-dimensional ‘temporal, situational, relational and structural nature of vulnerability’ (Vironkannas et al., 2020, p. 19). Dehaghani argues for a holistic examination of vulnerability, namely, an approach that accounts for situational as well as individual factors within Fineman’s proposition of vulnerability as an inherent human condition. That is, we first accept that all ‘human beings … are universally susceptible to harm, injury and dependency’ and our ‘strength, weaknesses and abilities’ are relevant to individual resilience when we interact with the world and institutions (Dehaghani, 2020, p. 256). So, rather than focusing on individual vulnerabilities or deficits, the focus ought to be on the state’s responsiveness and how interactions and institutions deplete or support resilience. For example, resilience is supported by access to legal aid, but resilience is depleted by the law that is ‘complicated, alien and often impenetrable’ (Dehaghani, 2020, p. 262).

While Dehaghani applies this approach to the specific context of police detention, her approach can be applied more broadly to how criminal procedures and criminal justice interactions, environments and technologies reduce or support resilience. For instance, we shall see later how the resilience of vulnerable witnesses during a criminal trial might be built through special measures that can be considered ‘assets’ of support (Fairclough, 2023, p. 5) including remote witness facilities. Love (2019) argues for Fineman’s conceptualisation of vulnerability to be an organising principle in criminal procedure, that is, a basis for building witness resilience and encouraging meaningful participation so that their testimony contributes coherently to the fact-finding exercise. Bringing vulnerability theory into criminal procedure recognises witnesses as ‘vulnerable subjects’ and draws attention to the state’s responsibility to provide effective access to justice (Love, 2019, p. 2). In this way, criminal procedure and ‘the rules of evidence have the potential to mobilize knowledge from vulnerable witnesses, ensuring participation and encouraging resilience’ (Love, 2019, p. 18; see also Cossins, 2020).

Conversely, we shall see later how the resilience of remote individuals might, in some circumstances, be drained by their physical isolation from their lawyer and the court, impeding their participation. For instance, Pivaty (2021), in examining vulnerable child suspects, finds that certain criminal procedures deplete the resilience of child suspects and simultaneously deepen the inequalities they face before the justice system. This is due to the coercive and traumatic experiences of arrest, police custody and interrogation, as well as the failures of the justice system to provide adequate safeguards that are specifically relevant for vulnerable child suspects. While Pivaty finds that their resilience may be enhanced through access to legal assistance and the support of a ‘trusted person’, she also questions the efficacy and sufficiency of these measures. That is, the basic provision of these measures legitimises the coercive criminal procedures applied to children. Other studies point to further considerations for vulnerable suspects and defendants. In Australia, Hughes et al. (2022) argue that vulnerable, over-policed and over-incarcerated groups are over-represented in bail hearings with vulnerabilities arising from the impacts of colonisation, inter-generational trauma and systemic oppression. They examine the multiple and intersecting vulnerabilities of bail applicants and how those vulnerabilities compound their interactions with the criminal justice system and lead to poorer justice outcomes.

Vulnerability, as a concept, has recognised limitations. Although vulnerability is much utilised, it remains nebulous, poorly examined and fetishized. The term can be interpreted as normative, pathologising, paternalistic, condescending and disempowering, and its overuse has led to it becoming meaningless and ineffectual. It can stereotype whole populations who are perceived as weak, deficient and lacking agency and power, while not necessarily protecting them against harms. What exactly makes individuals vulnerable is objectively unclear and highly contextual, and focusing on individual incapacities deflects attention from the structural forces that generate and reproduce vulnerabilities (Bartkowiak-Théron & Asquith, 2017; Brown et al., 2017; Dehaghani, 2020; Dehaghani et al., 2024; Fairclough, 2023; Levine et al., 2004; Luna, 2009; Pivaty, 2021; Travers et al., 2020; van den Hoonaard, 2020; Vironkannas et al., 2020). Focusing on external and objective measures of vulnerability can reduce an individual to a series of risk factors (Dunn et al., 2008). Rather than focusing on vulnerability, Taggart (2024) argues that attention should be placed, instead, on effective participation or, perhaps, ‘communicative participation’ (Duff et al., 2007: 199).

On the other hand, Brown et al. (2017, p. 15) observe that vulnerability studies tend to focus on theoretical debates and call for ‘empirical realities of vulnerability’ that contribute insights from relevant stakeholders including practitioners to address ‘important gaps between theorisations and lived experiences of vulnerability’. Additionally, they argue that the ‘careful deployment of vulnerability may have the potential to assist with theorising that animates dimensions of disadvantage and inequality’. It is certainly an aim of this study and later chapters to contribute empirical realities of vulnerability from judicial officers, lawyers and criminal justice professionals. Thus, while it is recognised that vulnerability is contextual and perhaps deficient, it still provides a useful framework for understanding disadvantage and inequality in this study’s examination of digitalised legal practice, process and policy (Carney, 2018) and the social injustices or harms that can result (Gilson, 2016). This study focuses on populations who ‘face persistent conditions of vulnerability’ (Tsatsou, 2022, p. 1) including people-in-prison with their ‘imported vulnerability’ or ‘life baggage’ (Goyes, 2024, p. 601; Liebling, 1992), as well as those people whose multi-layered vulnerabilities might evolve and vary throughout the criminal process, such as vulnerable complainants (Mergaerts & Dehaghani, 2020). The careful deployment of vulnerability theory forces an awareness and triage of those persons who genuinely need additional resources to support their resilience, effective participation, communication needs and comprehension (McKay & Macintosh, 2024).

Let us now move to this book’s melding of vulnerability theory with digital criminology to contribute to understandings of digital vulnerability. While digital vulnerability has already been applied in certain criminal justice contexts, as detailed below, instead of merely applying the prefix digital to vulnerability, my conceptualisation draws explicitly from the core foundations of digital criminology. It focuses on the techno-social aspects of digital society, the ubiquity and ‘centrality of digital technologies in modern political and social life’, and the emergence of unintended consequences, inequalities and harms (Powell et al., 2018, p. 3). That is, my use of the term, digital vulnerability, builds on the conceptual, methodological and empirical concerns of digital criminology (Smith et al., 2017) to understand how the digitalisation of criminal procedure positively and negatively impacts and mediates the interactions with vulnerable persons and, indeed, generates new human-technology interactions (Kellmeyer, 2019). Being directly informed by digital criminology enables the theoretical analysis to capture a nuanced understanding of the transformations brought about by digitalisation in criminal courts, justice agencies, procedural protections and legal practice.

Moreover, the merger of digital criminology with vulnerability theory gives rise to digital vulnerability as a framework for asking: what new social solutions or harms arise when vulnerable people use remote communication technologies to access justice? In what ways do these technologies support or deplete resilience in criminal procedure? Do technologies replicate, exaggerate or alleviate existing inequalities? Are individuals made more or less vulnerable by these technologies? Techno-solutionism is necessarily both embraced and resisted, depending on the vulnerable person’s circumstances and whether the technologies operate to enable access to justice—or generate barriers to justice.

As a starting point, although in the context of ICT, Ransbotham et al. (2016, p. 1) define digital vulnerability as ‘susceptibility to harm that stems from the use of digital technologies’. In the context of European private law, Liu (2023) defines the concept as vulnerability caused by digital technologies with the concept interrogating the risks, harms, disruptions of technologies and how special legal protections might assist in addressing vulnerabilities and inequalities. Regarding vulnerable people in administrative law, Creutzfeldt et al. (2024, p. 150) propose ‘the lens of digital legal consciousness’ that captures the intersection of digital and legal capabilities.

There are limited extant applications of digital vulnerability in criminal justice scholarship. Betts and Spenser (2017) make reference to digital vulnerability in their examination of young people’s experiences of digital technology and cyberbullying, but their application is limited to the risks of online interactions and victimisation (see also Carcelén-García et al., 2023). Vargas et al. (2019) provide a useful and compelling conceptualisation of digital vulnerability to understand the impacts of technology in producing unequal exposure to data breaches by government agencies. Their article applies digital vulnerability as a framework to understand how electronic or digital contact with the criminal justice system may generate unequal risks of harm within the specific context of having incriminating information publicly released. While their focus is on 911 emergency calls in the US, they propose that the concept of digital vulnerability can be applied to other technologies in criminal justice for identifying hidden ‘inequalities rooted in technology’ (Vargas et al., 2019, p. 72). They build on Fineman’s conceptualisation of vulnerability to propose that digital vulnerability ‘extends prior research by emphasizing that citizen vulnerability occurs not only physically during police stops on the streets or trials in county courts, but also digitally across cyberspace and radio waves’ (2019, p. 74). The authors offer insights into how technological advances can have ‘detrimental and often unintended consequences for citizens’ including ‘producing new forms of digital racial inequalities’ (2019, p. 72). In the context of suspects and defendants, Rice and Skinns’s blog (2021, n.p.) suggests that they should all be treated as ‘digitally vulnerable’ in the face of technologically mediated criminal procedure, requiring attention to be paid to protections and adjustments aimed at ensuring fairness and equality. Finally, Ranchordas and Beck (2025) touch upon the rise of e-courts and digitalised criminal procedure as generating new vulnerabilities and exacerbating pre-existing vulnerabilities relating to individuals’ communication needs. I build on these earlier engagements with digital vulnerability to conceptualise it in the specific context of remote communication technologies in criminal courtrooms and practice.

In my coupling of digital criminology with vulnerability theory, I aim to contribute to extant theoretical understandings of digital vulnerability by, firstly, overtly drawing on digital criminology’s attentiveness to techno-sociality and, secondly, by folding-in vulnerability theory’s notion of resilience. This chapter has sought to chart these two frameworks separately and then, like a Venn diagram, identify their intersecting, overlapping or complementary elements to present a new imagining of digital vulnerability.

Digital vulnerability is used here to understand the interplay between digital communication technologies and vulnerable individuals in the digitalised criminal justice. It recognises the enmeshment of technologies in everyday life that necessarily flow into contemporary criminal justice agencies and institutions and that, thereby, transform interactions with vulnerable individuals. As a conceptual framework, digital vulnerability captures the convergence of digital communication technologies and vulnerability with criminal procedure. It highlights the fundamental role of technologies in shaping ‘social, political, and technological processes’ of institutional order and power relations (Madianou, 2019, p. 3). Furthermore, with this framework, we can understand how ‘innovation is linked to experimentation and risk-taking which is particularly problematic when applied to vulnerable populations’ (Madianou, 2019, p. 3). Beyond entrenched social inequalities, it is widely recognised that, even in developed nations, there is ‘digital social inequality’ (Halford & Savage, 2010, p. 938) and ‘unequal technosocial relations’ (Powell et al., 2018, p. 10) meaning a lack of parity in access to internet, suitable devices and skills due to socio-economic, age, gender, social marginalisation and racial reasons. There is a need for ‘digital social inclusion’ that allows populations to access the transactional and relational benefits of the digital realm for myriad purposes (Powell et al., 2018, p. 29) including access to courts and lawyers, while minimising risk and emphasising dignity.

Here the concept of digital vulnerability is applied to the content analysis and empirical data (Chapters ‘Remote Vulnerable Witnesses, Complainants and Victims’, ‘Remote Vulnerable Defendants’ and ‘Future Visions of Digitalised Criminal Justice’) to reveal how technologies may build or deplete the resilience of vulnerable witnesses and defendants. Through this analysis, I seek to push the boundaries in terms of the conceptualisation of digital vulnerability. As a tool for empirical analysis, the concept assists in identifying how vulnerabilities may be ameliorated by technologies, that is, techniques of mitigation that support resilience and enable access to justice, effective participation, engagement, comprehension and dignity. Simultaneously, the concept assists in unveiling the compounding of existing harms, potential new harms and unintended consequences and inequalities wrought by technologies: techniques of intensification. These harms might include barriers to justice and the amplification of asymmetrical power relationships from disconnection with human processes, unmet communication needs, lack of autonomy and control: techniques that drain resilience and exacerbate vulnerabilities. What we will see is how these tensions can often push and pull in opposing directions so that what might be a beneficial mechanism of support to one vulnerable individual in criminal procedure might disadvantage another vulnerable individual. This polarising analysis seeks to prompt greater awareness of the diverse and uneven impacts of digitalisation, and encourage courts and lawyers to account for the risks of digitalisation. New technologies need to be designed and implemented responsibly, ethically and inclusively, and abide by the imperative of ‘Do No Harm’ (Australian Red Cross, 2024, n.p.).

This model of digital vulnerability is positioned as specifically relevant to processes of digitalisation in the justice system that necessitate theorists to respond empirically, conceptually and epistemologically to the role of digital technologies in criminality, control, courts and punishment. It provides a means to understand the intersection between the individual, structural and systemic vulnerabilities of individuals and social inequalities, on one hand, with the use of remote communication technologies, on the other hand. The concept engages with how the human aspects of communication in digitalised procedure may be enhanced or compromised; how some technologies might build capacity and overcome disadvantage or, alternatively, produce and reproduce inequality. These themes are woven throughout the book and the final chapter will engage with the need to ground processes of digitalisation and legal innovation in human values. With this conceptualisation of digital vulnerability, the book aims to provide a critical understanding of, and deep engagement with, vulnerability in the increasingly digitalised legal environment.