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Sexual assault law change is not the gag order critics claim


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Court permission is now required to publish a victim’s story in a sexual assault matter. When introduced in 1991, the idea of the law was to encourage women to report sexual assault and know they could do so anonymously.

But the Law Reform Commission report published earlier this year and campaigns such as #Letherspeak, run by some media groups and sexual assault victims’ advocacy groups, have said the law prevents victims and their families from telling their story and allows the perpetrator of sexual assault to “get away with it”.

Hennessy’s reforms, revamped over the past couple of months after concern was expressed by those lobbying for change, essentially mean that if a journalist, for example, wants to publish a story about a victim of sexual assault, then so long as they have the consent of the victim, and the publication reflects what the victim agreed to speak about, then the journalist can do so without having to seek the permission of the court.

The new laws will even allow children to tell their story so long as there is a third party report from a medical practitioner or psychologist who can affirm the child understands the consequences of losing their anonymity.

What if the victim is dead? Despite claims that the families of high-profile murder victims Jill Meagher and Eurydice Dixon would be gagged from speaking to the media about what happened to their family member because they were sexually assaulted before being murdered, a read of the proposed amendments does not support this assertion.

What is required is court supervision of publication to ensure the media and others are not publishing without the consent of victims and their families.

Under the new laws, if a family member or any other person wishes to publish material concerning their deceased loved one, then an application is made to a court, which will take into account “the views of any family members of the deceased victim” unless the family member is the alleged or convicted offender, and whether it is in the public interest to make the order.

This is a sensible provision because it regulates the publication of highly distressing material about a person who is no longer alive. It could prevent, for example, a case where some family members sought to publicise the deceased family member’s horrific ordeal but there was strong opposition from others in that family.

While the critics of Hennessy’s new laws appear to object to any form of judicial oversight of naming victims of sexual crimes – their argument is essentially if victims and their loved ones want to publish then let them – this ignores two key issues.

There are many victims who want anonymity forever. These individuals must have that right protected and not become victims of unscrupulous attempts to get them to “tell their story”. There also has to be protection for individuals in cases where there are a number of victims. In familial sexual abuse cases, for example, some victims might be OK with being named as victims, while others are not. The consequences of publication could be to identify those who want to remain anonymous. The law will enable a court to protect those family members.

It is vitally important that victims of sexual assault are given their voice in the media and on other platforms. But it is also important that the voice is moderated and regulated and, only in cases where there is informed consent given by victims about what they agree to have published, should the media be permitted to tell the story.

Greg Barns, SC, is a barrister and lecturer at RMIT University in jurisprudence.

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