Please note: This article contains sensitive references to rape and sexual abuse.
In a landmark ruling, the High Court has opened a potential lifeline for survivors of domestic violence. If you’ve secretly recorded admissions of abuse, that evidence could now help you secure safety.
On Wednesday, Australia’s highest judicial body rejected an appeal from a man found guilty of sexually assaulting his wife while she slept, on two separate occasions.
The man contended that the recording, in which he confessed to the first assault, was acquired unlawfully.
Although recording private conversations is generally prohibited, the court determined this particular recording was admissible. The justification? It was crucial for safeguarding the victim’s “bodily autonomy and integrity.”
“The covert recording was the reminder to the complainant, by replaying it to herself, to avoid being exposed to the real risk of being raped,” the court said in its unanimous judgment.
“The interest of a person in not being raped is an interest deserving of the very strongest protection.”
The man, known by the pseudonym Potter, was found guilty in South Australia of raping his sleeping wife on two occasions while the jury could not reach a verdict on two further counts.
A month before the last rape, his wife recorded a conversation on her phone where she confronted Potter about the attacks, and he admitted to doing them.
The woman gave evidence that she made the recording to “convince myself never to go back to him no matter what happened”.
A major milestone
Heather Douglas is a legal expert and professor at Melbourne Law School. She said protecting the rights of victim-survivors to record — and use as evidence — confessions of abuse inflicted on them is a major milestone for domestic violence law in Australia.
“The decision is important as it explicitly recognises that a lawful interest includes a right of bodily autonomy and integrity in the context of recordings,” Douglas said.
“Domestic and family violence is a violation of bodily autonomy and integrity.”
The influence of the High Court’s decision could extend beyond criminal cases, potentially allowing for similar recordings to be used in protection applications, according to Douglas.
However, it remains to be seen how far courts will allow secret recordings to be used to as evidence against less obvious forms of abuse.
Douglas believes, “much of the most damaging domestic and family violence is non-physical, such as coercive control, and this form of abuse impacts autonomy”.
“I would hope the understanding extends to that.”
The husband is serving a 9.5-year prison term.
If you or someone you know is impacted by sexual assault, call 1800RESPECT on 1800 737 732, text 0458 737 732, or visit 1800RESPECT.org.au. In an emergency, call 000.