Victoria’s new sexual assault laws have gone backwards, gagging survivors from speaking out against their convicted abusers.
The timing is bizarre: for the last few years, campaigners have successfully advocated law reform that allows sexual assault victims to publicly reveal their identities — most recently in the NT and Tasmania.
Survivors say the right to tell their stories gives them autonomy previously taken away by their attackers.
They say it can promote healing, reduce feelings of shame and create an environment which empowers and inspires more survivors to come forward.
Experts, advocates and survivors say the new laws show how quickly incompetence, ignorance and misinformation around sexual assault can undo the progress made in the wake of the Me Too movement.
What are the new laws?
The new legislation was supposed to make it easier for survivors to remove court orders protecting their identity, as recommended in a review of the court system.
Instead, they’ve had the opposite effect. To publicly reveal their identities, victims of sexual or family violence now have to go back to the courts to apply for an order, which activists say could cost more than $10,000 in legal costs.
A court order isn’t needed if an alleged abuser is acquitted, or if charges aren’t laid.
But if an abuser is convicted, and their victim does speak out under their real identity, they face up to four months in jail or fines of thousands of dollars.
Victoria is now the only jurisdiction in Australia place with such gag laws in place.
How did this happen?
The law, enacted in February, prompted widespread outrage yesterday following media coverage.
Journalist and survivor advocate Nina Funnell, who spearheaded the #LetHerSpeak and #LetUsSpeak campaigns, wrote to Victorian Attorney-General Jill Hennessy in her capacity as a journalist questioning the change.
Hennessy denied survivors were silenced, writing: “The changes that took effect in February this year did not have the effect of prohibiting media outlets from identifying survivors — they have reduced barriers for victims to tell their stories.”
“The fact [the laws] got through both houses of parliament with no one apparently reading the act — I read this as a spectacular case study as to how lawmakers can do their jobs poorly,” Funnell said. “We shouldn’t attribute to malice what may be explained by incompetence.”
Advocacy group End Rape on Campus Australia (EROC) wrote a seven-page letter to Hennessy outlining how survivors had been impacted by the changes, followed up with letters from the National Union of Students and Rape and Sexual Assault Research and Advocacy (RASARA).
RASARA chair Dr Rachael Burgin said that while survivor advocates were consulted when the legislative changes were being discussed, there was no indication the legislation would gag survivors.
“The laws were almost silently introduced — it was really under the radar,” she said. “It just shows the ignorance of the issues and that there’s been little to no care in drafting the legislation.”
RASARA didn’t receive a response from Hennessey’s office.
Following the social media storm, Hennessey told Inq her office was seeking urgent advice around the changes.
“I am aware of the concerns raised by victims and advocacy groups regarding the effect of these reforms and have asked the Department of Justice and Community Safety to urgently look at whether further changes are needed to ensure they are effective,” she said.
Survivors in legislative limbo
Sisters Dassi Erlich, Nicole Myer and Eli Sapper have bravely told their own stories of institutional childhood abuse to give hope to other survivors. The new laws mean Inq can’t publish details about their high-profile alleged abuser.
“We’re enraged,” Erlich told Inq. “It’s absolutely ridiculous. To be silenced — again — after we’ve spent our childhood in silence … has been triggering, and has placed shame back on us.”
Each of the women has their own children and spoke out about their experiences to create a safer world for the next generation.
“Coming out was to inspire others,” Myer said. “It’s empowering, it’s healing … To take that away from us takes away everything.”
Sapper said they wanted the legislation to be swiftly reversed, and an apology issued. “It feels like we’ve taken 200 steps backwards,” she said.
Georgie Burg was one of many who survived the abuse of a prolific pedophile priest John Aitchison in the ACT. She told Inq she was worried others wouldn’t come forward following the changes.
“For three years and eight months, I was nothing but number 577,” Burg said.
“The Victorian government has made survivors go back to being just numbers or initials in a court transcript.”
Burg said every survivor deserved the right to go public if they wanted to. She, like Erlich, Myer and Sapper, went public to help other survivors.
“I was named so other survivors can understand that there is another option than keeping a secret for my whole life and feeling mired by shame,” she said.
“By giving survivors a chance to use their name if they chose to do it, you give them a hope of survival, that there’s something else on the other side of being raped and victimised. Surely that’s what we all want.”
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
Another great article Amber. Why should victims have to do anything, even just lodge a statement? They shouldn’t. But having to go to court? That is outrageous. People need to remember that sexual offences are public offences, and by testifying, victims are doing their civic duty. Why should they then have onerous restrictions and obligations imposed upon them, it’s the opposite, they should be rewarded!
Where the law really needs to be tightened up on is when OTHERS identify victims of sexual offences without the victims consent. I have personal experience where I gave an interview to an ABC tv journalist about a child sexual assault case where one of my son’s was a victim. The journalists said we would be ‘de-identified’, but when the piece is broadcast both my and my wife’s faces are clear as day. All we got was a ‘sorry’ & to be frank, it was insincere at that. I also have first hand experience where the AFP have released to private corporations doing a ‘security check’ details of children’s court proceedings which are supposed to be sealed. Again, no consequence for the party that wrongly did the unlawful releasing, just a ‘we made a mistake’.
But the biggest problem is the mandatory silence on naming alleged sexual offenders. We name most other people who are charged with serious offences like murder. It’s this silence which often gets serial offenders let off because other victims don’t know he has been charged. On the case for my son we had to apply to the court ourselves to have a suppression order on the alleged offender’s name lifted. A direct consequence of his subsequent naming resulted in other victims coming forward. Some were too traumatised to testify, but it greatly helped justify to those who were testifying of the need for them to do so. It is simply crap that a properly instructed jury cannot be relied upon to apply their mind to the matters raised in court. Silence on naming alleged offenders builds in a massive bias against rightful convictions. Derryn Hinch was correct.
Of course the other big issue raised here is that it seems members of both houses of the legislature of Victoria are, each and every one of them, guilty of misfeasance in public office if it is true they voted for the legislation without reading it.
Your last paragraph is the kicker..
And very likely the problem..
There is no question of any misfeasance. Under the westminster system as it currently operates there is no incentive at all for any major party MP to read any legislation. Their job is to do what they are told. Any backbench MP discovered reading legislation will be suspected of having a tendency to independent thought and would face serious career-limiting consequences. Ministers often do not even pretend that parliament will scrutinise legislation, by releasing a bill just before calling a vote. It is the rotten, decayed, dysfunctional condition of representative democracy that produces these outcomes, and there’s not much the MPs can do about it.
Absolutely agree with everything you say.
A good old fashioned public shaming is also the biggest deterrent. We are a strange society because we shame people for the smallest crimes and we protect all those who commit the WORST.
“We shouldn’t attribute to malice what may be explained by incompetence.” Or sheer stupidity.
For this to have been pushed through in such a manner, so that nobody realised what was going on, speaks of a degree of deceit. The question is “Why?”
Incompetence is entirely possible. I’ve had some experience preparing federal legislation. The process is so grossly overloaded by the maniac desire of ministers for new legislation that drafting and review (before it even gets to parliament) is horribly rushed with predictably dire results. Once the legislation is passed this only makes matters worse as the demands for urgent revision of the faulty legislation is added to the stacks of new legislation being prepared, further jamming up the system and adding yet more mistakes, which makes matters worse…
Yes. It reminds me of that law which was intended to help survivors of family violence who kill the perpetrator after years of abuse. I think it was called the ‘provocation’ law? For example: James Savage planned and killed his wife, buried her in a shallow grave then called up his mate, a solicitor, had some dinner and rang police to voluntary turn himself in. He then used the ‘provocation’ law to claim Julie had ‘provoked’ him by wanting to go out and live her life without wanting him in it. Terrible thing for a man to hear. This defence was successful. James won and was released not too many years later. Now he has a new wife and a new life. I think that terrible law has been changed now. But not soon enough to help Julie’s family or her twin sister.
It is very important that laws be constructed carefully. They have enormous ramifications and it is especially painful when laws not only fail, but do the actual opposite of the original intention.
This seems like an over the top reaction.
From what I have read, if the victim chooses anonymity (as is their right) during the initial stages ie police investigation and this is maintained during the court process, and the court process ends in a conviction it then requires a court order to overturn that right to anonymity.
This seems reasonable, ie it needs a legal reversal, as long as the process is easy, quick and costless.
If the victim doesn’t choose anonymity, or they change their mind pre-trial or if the case fails then this does not apply.
So the question is really about how hard the process is and any costs. It should be easy ie a stat dec that is then signed off by the court, there should be no cost to the person, and it should be quick.
Does there need to be a legal step to reverse a legal status post-trial. My guess is yes. The victim should always be the only one who can request a change of status.
I think your understanding of the real problems with this legilsation would benefit from reading Michael Bradley’s article also published today by Crikey, where it is all explained in some detail.
How did this happen? Who is it supposed to protect? Who has decided that victims can’t tell their stories of abuse? It’s bad enough these victims were abused, but then to gag them as well about what happened to them when they are brave enough to name themselves is unbelievable. Shame on the Andrews Government, which I thought had more empathy and understanding of sexual assault victims telling of their horrible experiences.
This is what happens with so much legislation. Something is “slipped in” at the last moment and nobody (nobody!) notices? you must be joking. What Michael Bradley wrote is so accurate. That applies to Councils and State and Federal Parliaments. One reason why so many referendums are lost, someone (always someone) added a bit extra.
Referendums,were a prime example of the deceit. The 1986 Australia Act should be re-examined to its last letter and all those lovely famous journos and their papers should hang their heads in shame over that legislation.
We have not had transparent government for a very long time. None of these things are unintentional.