Victorian Government Backtracks on ‘Gagging’ Sexual Assault Complainants

by Sonia Hickey

Victims’ groups are welcoming a proposal by the Victorian government to repeal laws which currently prevent complainants in sexual assault cases from using their real names when speaking out about their experiences, even after an offender has been convicted.

In recent days, the Victorian Government has committed to doing away with these laws by the end of 2020, with the state’s Attorney-General Jill Hennessy announcing that reforms would be fast-tracked to allow sexual assault victims to speak out.

#LetUsSpeak

Ms Hennessy’s announcement has been seen as a victory by the #LetUsSpeak movement, which has been advocating for a change in the law. The has already successfully campaigned to repeal similar victim gag-laws in both Tasmania and the Northern Territory. Those changes occurred earlier in 2020, helping to persuade Victoria to follow.

Gag order

The ‘gag’ order, which was enacted by way of amendments to the Judicial Proceedings Reports Act in early 2020, and is currently in force, makes it a crime for anyone to identify sexual assault victims by name. An unintended consequence of the law is to prevent victims from telling their stories under their real names.

The safest time for a victim to speak to the media is generally considered to be after a conviction, as a conviction reduces the chance of being hit with a defamation lawsuit.. Speaking out at this time also reduces the risk of jeopardising an upcoming trial. It is also often the time that victims are able to get closure and begin a new chapter in their lives. For some victims, the process involves telling their personal stories.

But under current Victorian laws, victims face up to four months in prison and fines in excess of $3,000 if they speak out using their real names. Media outlets also face potential prosecution and fines of over $8000.

The only way for an impacted person to overcome this ‘gag order’ is to apply for a court order to lift the restriction, at their own expense, which some estimates suggest can cost in excess of $10,000, without any guarantee of success.

Reform on the way

Ms Hennessy says the laws were never intended to inhibit ‘willing victim-survivors being able to speak out and share their stories’, but were to help protect the privacy of victims and avoid exposure to additional distress.

However, the government now acknowledges that the law has had unintended consequences. Ms Hennessy has made clear that the rights of victims are “at the heart of reforms”, and undertaken to commence receiving input from affected groups over the next month.

And while this is welcome news for victims, many have questioned why the law was enacted in the first place, particularly in light of the Royal Commission into Child Sex Abuse, and more recently #MeToo, both of which have exposed the very real emotional damage and suffering victims cope with.

Many say that going through the process of making a complaint can be daunting in itself, and that the experience of a trial can be re-traumatising.

Victims’ groups are interested in reducing this trauma and assisting victims to heal. They say that preventing victims from speaking out can disempower them, as well as trivialise their experiences.

Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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