The Supreme Court ruled Thursday that it is not permissible to order tracking of the cellphone of a soldier who filed a sexual assault lawsuit against a policeman, overturning a decision by a lower court.
In March, the Central District Court in Lod authorized the police officer, who accepted a plea deal with respect to the assault, to obtain an order to track the soldier’s phone for a period of 18 months.
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The officer wanted to prove that the soldier regularly left her home after the assaults in a bid to disprove her claim that his assault caused her to become agoraphobic. In its ruling, the Supreme Court said that “the invasion of the plaintiff’s privacy that the order permits does not justify the issuance of the order. The sweeping nature of the order evokes a sense of inappropriate ‘predatory behavior’, in search of one piece of information or another, while severely infringing on her privacy, which should not be compromised.”
Supreme Court Justice Yael Willner criticized the District Court’s decision to issue the tracking order, and the lengthy period of its validity.
“There are various alternatives for proving the defendant’s claim regarding the degree of the plaintiff’s disability,” the judge’s ruling reads, “The breadth of the tracking order contravenes the imperative to limit the disturbance caused to the plaintiff (the solider) to the absolute minimum. Justice Willner further writes that the location data included in the tracking order is spread “over 18 full months, day and night, without any distinction between specific dates,” in respect of which the police officer claimed that the soldier stayed in one place or another.
The case began in February 2017, when an indictment was filed against a 50-year-old police officer alleging that he had committed serious sexual offenses against a female soldier. She accused the officer of raping her and of other indecent acts in a police car near a checkpoint in the West Bank. Subsequently, the Justice Ministry unit that investigates police misconduct reached a plea bargain with the officer according to which he was convicted of indecent act by force, fraud, and breach of trust. He was sentenced to 19 months in prison.
In 2018, the soldier, together with her mother, filed a civil lawsuit against the police officer in the Lod District Court. The soldier claimed that the sexual assault caused her a disability that prevented her from leaving the house. A medical opinion was attached to the lawsuit demonstrating that his actions led her to lock herself in her room and that she had to be accompanied by a family member on her rare exits from the house.
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For his part, the officer, who was fired from the police, claimed that there was no connection between the sexual assault and the harm caused to the female soldier. He asked for the tracking order in order to prove that she still left the house, even after he had assaulted her.
Initially, Judge Irit Cohen of the Lod District Court asked the police officer to withdraw his request for a tracking order. Last March, however, she issued the order, permitting the mobile phone company to provide the officer with the location data of the soldier’s mobile phone on the grounds that “this may contribute to clarifying the facts relevant to the lawsuit.” The order, which is issued in civil proceedings only in very exceptional cases and for a limited period of time, was applicable for 18 months, between the years 2017 and 2019.
Following the decision, the soldier’s lawyer, Abraham Aloya, filed a request for leave to appeal to the Supreme Court, which overturned the District Court’s decision.
Justice Willner’s opinion, supported by Justices David Mintz and Yitzhak Amit, said: "It is difficult to abide by such a sweeping order, even in criminal proceedings when the sexual assault victim’s interests come up against the right of the accused to defend themselves and the overarching search for truth."
Aloya stated: “This is a matter of principle. The question arises whether there is room to issue a tracking order in civil proceedings and certainly in such a case where the order is requested by the person who violently sexually assaulted the plaintiff.”
Aloya added that “the ruling was very difficult for the victim. Her condition deteriorated further because she felt completely helpless. The very fact that the court issued a tracking order that was disproportionate in scope, especially to her attacker, led her to the awful conclusion that she had no one to rely on and that she could not get a fair result in the courts. “