*THIS BLOG DOES NOT CONTAIN LEGAL ADVICE AND SHOULD NOT BE TAKEN AS SUCH. THIS DOES NOT COVER ALL ISSUES RELATING TO CRIMINAL LAW OR SURVEILLANCE AND FURTHER ADVICE SHOULD BE SOUGHT FROM A LEGAL PROFESSIONAL ON THIS ISSUE*
Today I had the unfortunate experience of hearing about an incident which occurred in a brothel. The sex worker commenced the transaction with the client, left the room and upon coming back to the room, found that the client had video recorded the transaction. The sex worker was brave enough to demand that the man delete the recording immediately and the client was removed from the premises.
What happened was a breach of privacy. However, unfortunately, we do not have strong privacy laws here in Australia. What I can say though, is that I would put a wager on this falling under the Crimes Act 1900 (NSW) and its various state equivalent as being “indecent assault”.
For example, we can firstly look to s 227 of Queensland’s Criminal Code, which states the following actions to be indecent under the section:
“(1) Any person who
(a) wilfully and without lawful excuse does any indecent act in any place to which the public
are permitted to have access, whether on payment of a charge for admission or not; or
(b) wilfully does any indecent act in any place with intent to insult or offend any person;
is guilty of a misdemeanour, and is liable to imprisonment for 2 years.
(2) The offender may be arrested without warrant.
So, it would come down to an argument about whether a brothel is a public place, or a place where the public are permitted to have access (which I would argue to be the case) and secondly, the filming of sex without the consent of another party is an indecent act – because it certainly has the intent of insulting or offending a person. Please note though, I am not a criminal law specialist. However, the case of R v Stringer, in the Supreme Court of New South Wales, Court of Criminal Appeal (NSWCCA) set out the following test for indecency:
“The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety… or an affront to modesty… or would offend the ordinary modesty of the average person…”
Filming A Person Engaged In A Sexual Act
Section 91K of the Crimes Act 1900 (NSW) and similar provisions of state legislation state that it is a general offence is someone, who for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person engaged in a sexual act, WITHOUT the consent of the person being filmed, you are guilty of an offence with the possibility of being imprisoned for two years.
He would have also gotten done for a breach of Section 91M for installing a device to faciliate observation of filming, which would mean he could have possibly been found guilty and imprisoned for two years.
What Do You Do If This Happens To You?
1. If you have the ability to do so, call the police immediately. I do not recommend that you force a person to stay in the room with you, as this may create a dangerous situation for you. If you can call the police, do it. If it means putting yourself in danger, do not. We talk about “citizens arrests” but frankly, its not worth putting your life in danger to do it.
2. You need to decide whether that person should delete material or not. If you have called the police and they are on their way, do not ask the person to delete the material because you will be deleting evidence that the police will need to show that the offence/s have been committed. But, if you do demand that the person deletes that material (and if you are not going to call the police), be very sure that the person actually does delete it. Have the person do it in front of you, immediately.
3. If you do delete the material and THEN take the matter to the police, it is okay. I have it on good authority that police forensics have the ability to obtain data that has been deleted from phones. I don’t know the specifics of how it has been done but I have been involved in forensic investigations in corporate matters and they were able to lift material that had been deleted from phones and computers.
4. It then all comes down to whether you have the identity of the client. If you are in a brothel, there may be CCTV available, if you are in a hotel, this may also be available.
This all comes with the disclaimer that I am aware that sex workers sometimes are afraid to go to the police – for various reasons. I recognise that this is a real experience with sex workers – they do have an apprehension of going to the police. If you are afraid of going to the police, then contact either myself, or an organisation like Scarlet Alliance, SWOPnsw, SIN, and/or a counsellor who may be able to assist you with support.
How To Prevent This From Happening
1. If you are doing an outcall, there is no possible way for you to know that the client has a filming device. This is a risk and will always be a risk. Watch the client’s behaviour. Is he positioning you in a specific way? This could mean he is conscious of the device’s focal range. Is he looking constantly at a certain object? That should raise suspicions. This is not to scare you. Its just asking you to be aware of behaviours that may make you suspicious. If you are suspicious, then terminate the transaction (in the safest way possible). Whether you give a refund or not is your decision.
2. If you are doing an incall, watch where the client places their personal belongings, particularly their phones or their watches. You are within your rights to ask for the phone to be placed under an item of clothing. The same applies if you are in an establishment – be aware of the placement of their phones.
This blog post is not to scare you – it is to make you aware because it happened to a sex worker today and that sex worker is now currently dealing with the fact that not only her privacy was breached but is now questioning “what would have happened if I had not have noticed?”