#LetUsSpeak: Victoria sexual assault gag law could see rape victims jailed

Sexual assault survivors could be fined thousands and even jailed under new gag law in Victoria - and it’s a thumping victory for rapists.

OPINION

Convicted rapists and paedophiles in Victoria must be cheering in their jail cells today, to learn that their victims are no longer able to speak to the media, publish autobiographies, or do any kind of public advocacy work – at least not under their real identities.

Under changes to the Judicial Proceedings Reports Act – which were quietly introduced in February – it is now a crime for all rape and sexual assault victims to tell their stories under their real names, once a guilty verdict is in place.

Ironically, this is ordinarily the safest time for survivors to speak to media, and lawyers will often advise sexual assault complainants to wait until this moment as the defamation risk significantly drops away, as does the risk of jeopardising an upcoming trial.

Now though, sexual assault survivors could face up to four months jail or fines of thousands of dollars if they speak out under their real identities post conviction.

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It’s a crushing development for survivors, some of whom are just learning that they are no longer able to self-identify in media, despite having already performed years of advocacy around critical issues, including institutional child sexual abuse.

It’s also a thumping victory for all convicted sex offenders in Victoria, not only because their victims are now significantly hobbled in the media, but because the only way for an impacted survivor to overcome the gag-restriction is to go back to court at their own expense and inconvenience to apply for a court order.

This process could cost each victim in excess of $10,000 and there is no guarantee of success.

Ignoring the financial penalty this saddles survivors with, for many, the process of going through court the first time is so deeply scarring, that even the idea of having to re-engage with the criminal justice system is going to be re-traumatising.

Indeed the very nature of sexual assault is that it disempowers and silences a person, stripping them of individual autonomy, agency, and control. Yet these are precisely the conditions being re-created by the new laws.

RELATED: NT scraps sexual assault gag laws

The #LetUsSpeak Victoria campaign is launching to overturn the State’s new sexual assault victim gag-law. Picture: Supplied.

This is why, today, I am launching the #LetUsSpeak Victoria campaign, in partnership with Rape and Sexual Assault Research and Advocacy (RASARA), Marque Lawyers, End Rape On Campus Australia and news.com.au.

The campaign (also known as #LetHerSpeak, as it was originally founded around a single woman) has already had success in overthrowing similar victim gag-laws in both Tasmania and the Northern Territory. Those changes occurred earlier this year, making Victorian politicians now look regressive by comparison.

But as the campaign shifts gears, it’s clear that there are some substantive differences between the jurisdictions.

“In Tasmania and the Northern Territory the campaign was seeking to correct old laws, which were still on the books as a hangover from the past,” said Dr Rachael Burgin, who is chairperson of RASARA. “Whereas in Victoria we are dealing with new legislation which was deliberately introduced in 2020.”

Another key difference is the sheer number of survivors who will be impacted, because of the relative sizes of the jurisdictions, as well as the history of vocal survivor activism in Victoria.

In 2016, for example, the Australian Bureau of Statistics ‘Personal Safety Survey’ found that an estimated 77,600 sexual assaults had occurred in Victoria in the previous 12 months.

The same survey found that only 2900 sexual assaults occurred in Tasmania and just 1300 in the Northern Territory, in the same 12 month period.

Beyond that, Victoria has always been an epicentre of public survivor advocacy, in part because of the high concentration of clergy abuse survivors in places like Ballarat.

Some of these survivors have been advocating for decades. Yet these individuals have now also lost the right to self-identify in public, if their offender has been found guilty and they have no court order permitting self-identification.

Michael Bradley, managing partner of Marque Lawyers, says that all up, “it would comfortably be tens of thousands of people who are affected” in some way or other by the gag-law.

“Even if just a few hundred of them sought court orders, that would cause a logistical problem for the courts.”

Maggie, who was raped as a child, has joined the #LetUsSpeak campaign. Source: Supplied

The only long term solution is law reform. But that could take months if not years and for victims like Maggie* and Melissa*, they don’t want to wait.

“It’s really important for victims to be able to tell their story in their own words, in their own way” says Melissa.

“We already remove so much from victims. Being able to decide if and when you tell your story gives you that chance to take charge and control over something that was taken away from you.”

*Names changed for legal reasons

Nina Funnell is the creator of the #LetUsSpeak campaign. Click here to donate to the GoFundMe campaign. Know more? Contact: [e-mail]

This article was supported by the Judith Neilson Institute for Journalism and Ideas.