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A private text message quoting a joke from Love Actually was extracted from Sarah Rosenberg‘s phone and read aloud in court as part of an attempt to undermine her credibility. In this piece, she argues the NSW government should expand the scope of its approach to protecting victim-survivors in court.
Have you seen Love Actually? There is a scene with Emma Thompson – not that scene – where she’s wrapping presents and asks which doll she should give her daughter’s friend: “The one that looks like a transvestite or the one that looks like a dominatrix?”
It is a throwaway joke, and one that would not pass today. Millions of people have heard it without giving it another thought.
One day, I texted that joke to my boyfriend.
During a rape trial, the message was extracted from my phone and read aloud in court.
A line from a beloved Christmas film became an opportunity to discredit me in front of a jury.
This is the reality of rape trials in Australia. They are not only trials about what happened. Too often, they become trials of a victim-survivor’s private life.
Years of personal information can be accessed, stripped of context and weaponised in court. A message becomes evidence of sexual character. Seeking counselling becomes evidence of instability. A call, a diary entry or a log of your search history becomes a reason not to believe you.
And right now, almost all of it is completely, legally, up for grabs.
The New South Wales Government has commissioned independent research into the Sexual Assault Communications Privilege, the legal protections applying to victim-survivors’ counselling records.
It follows years of advocacy by survivors, counsellors, lawyers, the Keep Counselling Confidential campaign and my work via With You We Can.
For decades we’ve warned that forcing people to surrender their therapy records is an invasion of privacy too severe, and a powerful deterrent to disclosing sexual violence if we ever hope to increase rates of reporting.
But counselling records were never the whole story.
By examining them in isolation, the Government risks strengthening protection around one category of information while leaving every other part of a survivor’s private life exposed.
A therapist’s notes might be protected, while text messages, medical information, diaries, school files, employment histories and Centrelink records remain available for scrutiny.
Victim-survivors do not experience privacy breaches in neat legal categories. Nobody sits in court thinking: thank goodness they subpoenaed my sexual history instead of my counselling notes.
If one source of material becomes harder to access, the search simply moves to another.
When victim-survivors report to police, they are often asked to hand over their phones.
Providing access is framed as cooperation. Even if – especially if – there is something embarrassing on the device, surrendering it freely can be presented as proof of honesty. Proof you have nothing to hide. Proof you are doing everything possible to help the case.
But phones do not hold evidence in labelled folders. They hold years of ordinary human life. Jokes. Arguments. Flirting. Photos. Emails. Contacts. Call logs. Google searches. Location data. Audio files. Deleted messages. Encrypted messages.
Lift fragments of anyone’s life out of context and they can be made to look strange, reckless or worthy of doubt.
My counselling records were used against me. I sat in court and listened as the fact I sought help after being assaulted was recast as evidence that I was psychiatrically unstable.
But the line used in the defence’s closing address to imply I was “asking for it” did not come from a counselling record.
It came from a text message.
Stronger protection for counselling notes would not have protected me from that.
Research by the Australian Institute of Criminology shows how widespread this intrusion is.
On average, victim-survivors have 2.6 different categories of private information sought during criminal proceedings. These include counselling records, text messages, diaries, financial information and employment histories. In some cases, even clothing choices become part of the scrutiny.
And on average, only 43 per cent are warned that this might happen. Not asked. Warned. Told after the fact that information they had never agreed to provide was already in someone else’s hands.
The invasion of privacy is not unique to counselling records. Neither is the deterrent effect on reporting, the reliance on rape myths, or the tactic of creating doubt by stripping fragments of a person’s life of context.
So why is New South Wales examining only one category of information?
The Australian Law Reform Commission has already recognised the breadth of this problem.
It did not recommend stronger protection for counselling records alone. It proposed a broader framework in which victim-survivors would be notified whenever their private information was sought, independent lawyers could appear on their behalf, and stronger protections would apply across many types of personal, sensitive and confidential records.
That is the scale of reform this problem requires.
Yet the NSW review asks whether counselling records should receive greater protection without confronting what happens when police, prosecutors or defence lawyers turn to a survivor’s phone, diary, medical history or employment records instead.
The Government had the Australian Law Reform Commission’s recommendations. It had the Australian Institute of Criminology’s evidence. It had years of testimony from survivors describing exactly which parts of their lives were dragged into courtrooms.
Choosing to scope the research around counselling notes alone is not simply cautious policymaking. It is a decision to ask a smaller question because the honest one is harder to answer.
The danger is not that the review will find counselling records deserve greater protection. They do.
The danger is that, in 2027, New South Wales will strengthen the Sexual Assault Communications Privilege, declare the job done, and move on. But the problem won’t be solved – it will have simply moved.
A joke lifted from a Christmas film should never have had the power to shape a rape trial.
Mine did, because my phone was never afforded meaningful protection. I had no independent lawyer to challenge the relevance of that message or argue against its use. Like many survivors, I had little power – or knowledge – over which parts of my private life entered the courtroom and how they would be distorted once they got there.
The Australian Law Reform Commission has already shown New South Wales what a stronger response looks like. Notify victim-survivors whenever their information is sought. Give them independent legal representation to challenge unnecessary requests. Require courts to consider relevance, privacy and harm before personal information is disclosed in the first place.
Protect the person, not just their counselling file. New South Wales does not need another review to discover that counselling records are only one part of the problem. It already has the evidence. It already knows where the harm occurs. What it needs is the will to reform that system that creates it.
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