How were the alleged actions of the PM’s press secretary not illegal?

The sudden resignation this week of one of prime minister Christopher Luxon’s senior press secretaries was politically embarrassing, but also raises questions about how New Zealand law operates in such cases.

A Stuff investigation revealed the Beehive staffer allegedly recorded audio of sessions with sex workers, and whose phone contained images and video of women at the gym, supermarket shopping, and filmed through a window while getting dressed.

The man at the centre of the allegations has reportedly apologised and said he had sought professional help for his behaviour last year.

The police have said the case did not meet the threshold for prosecution. And this highlights the difficulties surrounding existing laws when it comes to non-consensual recording, harassment and image-based harm.

Describing his “shock” at the allegations against his former staffer, the prime minister said he was “open to revisiting” the laws around intimate audio recordings without consent. If that happens, there are several key areas to consider.

Are covert audio recordings illegal?

New Zealand law prohibits the non-consensual creation, possession and distribution of intimate visual recordings under sections 216H to 216J of the Crimes Act 1961. These provisions aim to protect individuals’ privacy and bodily autonomy in situations where they have a reasonable expectation of privacy.

The definition of “intimate visual recording” under these sections is limited to visual material, such as photographs, video or digital images, and does not extend to audio-only recordings.

As a result, covert audio recordings of sex workers engaged in sexual activity would fall outside the scope of these offences, even though the harm caused is similar.

If such audio or video recordings were ever shared with others or posted online, that may be a criminal offence under the Harmful Digital Communications Act 2015 – if it can be proved this was done with the intention to cause serious emotional distress.

What about covert filming of women in public places?

Covert recording of women working out or walking down a road, including extreme closeups of clothed bodies parts, would unlikely meet the definition of “intimate visual recording”.

That is because they do not typically involve nudity, undergarments or private bodily activities, and they often occur in public places where there is no reasonable expectation of privacy.

Even extreme closeups may not meet the threshold unless they are taken from beneath or through clothing in a way that targets the genitals, buttocks or breasts. While they are invasive and degrading, they may remain lawful.

By contrast, it is more likely that covert filming of women dressing or undressing through a window would satisfy the definition, depending on where the women were. For example, were they in a place where they would have a reasonable expectation of privacy?

If the non-consensual recording captures a person in a state of undress, then the creation of such images or videos could be considered a crime.

Are any of these behaviours ‘harassment’?

Under the Harassment Act 1997, “harassment” is defined as a pattern of behaviour directed at a person that involves at least two specified acts within a 12-month period, or a single continuing act.

These acts can include following, watching, or any conduct that causes the person to fear for their safety. Although covert filming or audio recording is not expressly referenced, the acts of following and watching within alleged voyeuristic behaviour, if repeated, could fall within the definition.

But harassment is only a crime where it is done with the intent or knowledge that the behaviour will likely cause a person to fear for their safety. This is a threshold that might be difficult to prove in voyeurism or similar cases.

Covert recording of women’s bodies, whether audio or visual, is part of a broader pattern of gender-based violence facilitated by technology. Feminist legal scholars have framed this as “image-based sexual abuse”. The term captures how non-consensual creation, recording, sharing or threatening to share intimate content violates sexual autonomy and dignity.

This form of harm disproportionately affects women and often reflects gender power imbalances rooted in misogyny, surveillance and control. The concept has become more mainstream and is referenced by law and policymakers in Australia and the United Kingdom.

Has New Zealand law kept up?

Some forms of image-based sexual abuse are criminalised in New Zealand, but others are not. What we know of this case suggests some key gaps remain – largely because law reform has been piecemeal and reactive.

For example, the intimate visual recording offences in the Crimes Act were introduced in 2006 when wider access to digital cameras led to an upswing in covert filming (of women showering or “upskirting”, for example).

Therefore, the definition is limited to these behaviours. But the law was drafted before later advances in smartphone technology, now owned by many more people than in 2006.

Generally, laws are thought of as “living documents”, able to be read in line with the development of new or advanced technology. But when the legislation itself is drafted with certain technology or behaviours in mind, it is not necessarily future-proofed.

Where to now?

There is a risk to simply adding more offences to plug the gaps (and New Zealand is not alone in having to deal with this challenge). Amending the Crimes Act to include intimate audio recordings might address one issue. But new or advanced technologies will inevitably raise others.

Rather than responding to each new form of abuse as it arises, it would be better to take a step back and develop a more principled, future-focused criminal law framework.

That would mean defining offences in a technology-neutral way. Grounded in core values such as privacy, autonomy and consent, they would be more capable of adapting to new contexts and tools.

Only then can the law provide meaningful protection against the evolving forms of gendered harm facilitated by digital technologies.

This article is republished from The Conversation under a Creative Commons licence. Read the original article.