New law a ‘major victory for paedophiles’
Tens of thousands of sexual assault survivors in Victoria have been stripped of their legal right to tell their stories using their real names.
The changes to the Judicial Proceedings Reports Act - which were quietly introduced in February - silence all sexual assault victims whose offenders have been found guilty, by banning them from ever speaking out under their real identities.
The new 'gag laws' have been described as a "major victory" for convicted paedophiles and rapists, as their victims are now "muzzled" and prohibited from self-identifying in publications - including media and autobiographies - regardless of their consent.
The laws also apply irrespective of when the crime occurred or when the offender was found guilty, meaning that many Victorian survivors who have lawfully been able to tell their stories in the past are now censored.
This includes scores of high profile survivor advocates - including several clergy abuse victims from Ballarat - some of whom have been speaking out for decades.
These individuals will now potentially face jail time if they continue their advocacy work under their real names.
Any sexual assault victim found guilty of breaking the new laws could face up to four months jail and fines in excess of $3000. Media outlets could also face potential prosecution and fines of over $8000.
The only way for a survivor to reclaim the right to self-identify in public, is to take the matter to court and obtain a court order - a process which could cost each victim in excess $10,000.
"There is no way that I would just have ten thousand dollars sitting around to pay to do this. (I'd) be taking money away from (my) family" says Maggie*, an adult survivor of child rape who wishes to be named but is prohibited from doing so.
"You shouldn't have to fight for just wanting to tell your story. I have already spent enough time in the courts," Maggie said.
Today, the #LetUsSpeak campaign is launching in Victoria to call on the government to reform the gag law and a GoFundMe has also been launched to help support Victorian survivors cover court costs.
Maggie, a 44-year-old mother from Melbourne, was just eight years old when her father began raping her in her childhood bed.
"I used to keep 30 cents under my pillow in the hope that one night I might somehow get out of the house and get to a payphone and call someone and get them to take me away," she tells news.com.au.
But that night never came, and at age 12 Maggie attempted suicide.
Five years later her older stepsister Kate* came forward disclosing to police that she, too, had been abused by Maggie's father from the age of nine. He was charged with rape and gross indecency along with multiple counts of bestiality, after forcing Kate to engage in sadistic sexual acts with the family dog.
Terrified of her stepfather's temper, Kate went into hiding. But in May 1997, just four days before the trial was to begin, he tracked her down with the help of a private investigator.
In a hired car, he then drove to Kate's work and - in broad daylight - he pulled out a .38 revolver.
The first bullet hit Kate in the cheek. The second two, fired at point blank range, hit her square in the temple. She died immediately.
Eleven months later, Maggie's father pleaded guilty to Kate's murder, and in exchange the sexual offence charges against him were dropped.
That was in 1998. Twenty years later, after learning that her father would soon be eligible for parole, Maggie decided that she was finally ready to come forward about the abuse she experienced herself.
"There were no sexual assault convictions recorded against him back in the '90s, and that meant that if he was paroled he wouldn't have to register as sex offender or be monitored as one," said Maggie.
"I'm now a mother of three beautiful children and I wouldn't want him out in any community. I'm not just scared for my children. I'm scared for all children. I also have to be the voice for my sister too. She never got justice for the sexual abuse she experienced either."
Maggie reported her own assaults to police, and her father was charged with multiple counts of incest and rape against her, which he later admitted to.
Initially, he was sentenced to a further nine years jail. But in March this year, the Supreme Court of Appeal reduced his sentence for the crimes against Maggie, and ruled that he could serve the remainder of that sentence concurrently with his existing murder sentence.
The net result is that he will now be eligible for release as early as June 2022.
Horrified, Maggie approached the Australian media, hoping to alert the public by naming her father and highlighting the lenient sentence given to paedophiles.
Yet in another cruel twist, Maggie then learned that just one month earlier the Victorian sexual assault victim gag laws had been introduced, rendering it a crime for media to now name her.
She'd missed the cut off by a matter of weeks.
"You feel crushed," said Maggie. "So much of sexual abuse is being silenced and this just makes it harder. It makes the subject more taboo and brushes it even further under the carpet."
Worse, Maggie then discovered that because her identity is now fully suppressed, the media is also unable to name her father, due to the risk that doing so may indirectly identify her.
"If his victim had been a stranger then his identity would not be suppressed" says Maggie's lawyer, Michael Bradley, managing partner of Marque Lawyers.
"The only reason his identity is protected is because his victim was a member of his own family. He's receiving an accidental benefit of the law."
Paradoxically, if Maggie had never reported the sexual abuse police, the media could still name her father as a convicted murderer. That too is now not possible.
"This law protects the criminal, not the victim," says Maggie. "I feel like all I've done is put a huge target on my back for when he gets out. This hasn't made me or my children any safer. It hasn't made the community safer. All this has done is benefit him and shield him from the media," said Maggie.
"It feels like I'm right back where I started. Like I've still got that 30 cents hidden under my pillow and I'm still waiting for my chance to use it, but once again I can't get out of the house and no one wants to hear from me.
"My sister was murdered for trying to tell her story and now I'm stopped from telling mine. He has all the power again. It has to change."
Melissa* is a 41-year-old disabled woman and sexual assault survivor advocate.
For over a decade she was repeatedly raped by her former carer, who later admitted to the rapes. He served two years and six months in jail as a result.
Like Maggie, Melissa has recently lost the right to be named in the media. But unlike Maggie - who has never been identified - Melissa has been a longstanding public advocate for rape survivors, particularly those in the disability community.
"The media that I've done in the past has been radio, it's been television, it's been panel discussions on TV. It's been within podcasts, print media, and online articles as well," says Melissa.
"What first motivated me to come forward and speak out within the media was wanting to be able to talk about that personal impact of abuse.
"It helped give me validation and connect with other survivors, and that helped me process my own experience."
Since then, Melissa has sat on various high level boards and committees and last year she even featured in a government-produced video on disability and sexual assault.
Ironically, that video could now also be found in contempt of court, if it was deemed to breach the laws passed by the same government responsible for producing the video.
"When I was first notified that the law had changed, it was a little bit unreal and surreal," says Melissa.
"Then once it started to sink in, all the fears began about what it would mean for me and other victims and survivors who we've been trying to make space for in the conversation.
"We need more stories, not less. It's deeply, deeply upsetting. I can't help but reflect on how many other women are going to feel silenced again on top of what they've already experienced."
The only way for Melissa to continue her public advocacy work is to go back to court and fight for a court order which could individually exempt her from the gag-restrictions.
"I don't want to ever be in a courtroom again. And I never thought that I ever would have to be in a courtroom again" says Melissa.
"And why are we the ones that have to go through these processes to be able to speak our own truth? It feels like a punishment on top of something that was already horrific to begin with."
TRAUMATIC AND DISEMPOWERING
Dr Rachael Burgin, lecturer in the Swinburne Law School said that even if individual survivors can afford the thousands of dollars required to apply for a court order, there is no guarantee of success, and not every survivor is even eligible to apply. The prospect of having to re-engage with the criminal justice system could also deter some people.
"Many victim-survivors find court to be a deeply traumatic and disempowering experience to begin with" says Dr Burgin. "So the idea of having to re-enter that system is going to be triggering.
"Sexual assault is a crime steeped in silence and sexual offenders use shame and fear tactics to control their victims. This means that survivors who report to police and make it through the courts have already had to fight to overcome various psychological and social barriers.
"It's appalling that we would erect yet more barriers which muzzle victims. This can only be considered a major victory for offenders."
In a letter to the #LetUsSpeak campaign, Victorian Attorney-General, Jill Hennessy says that she is "very sorry" to hear about Melissa and Maggie's experiences.
"I have asked the Department of Justice and Community Safety to urgently look into these cases and consider how future reform could remedy any unintended barriers (to speaking out).
"Without the voices of survivors, we are missing an essential part of the story. I will always listen to survivors and do what I can to improve their experience of the justice system."
#LET US SPEAK: MAGGIE AND MELISSA UNITE TO CHANGE THE LAW
Maggie and Melissa are now determined to change the law.
A GoFundMe has been set up to cover their court costs and they are being championed by the #LetUsSpeak campaign, which is a collaboration between Rape and Sexual Assault Research and Advocacy (RASARA), Marque Lawyers, End Rape On Campus Australia, and news.com.au.
But there are some key differences with the Victorian campaign.
"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" says Dr Rachael Burgin, who is also chair of RASARA.
"In Victoria, we are dealing with new legislation which was deliberately introduced in 2020. This means that there are survivors, like Melissa, who were already exercising their right to be named, who have now been actively silenced and had their rights wound back."
ANXIETY AND FEAR
Dr Burgin says that for this reason, the new laws may trigger masses of "anxiety, uncertainty and fear" in the survivor community.
Another concern is the sheer number of survivors who will be impacted.
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 approximately only 2900 sexual assaults occurred in Tasmania and just 1300 in the Northern Territory, in the same 12-month period.
While not every sexual assault survivor in Victoria will be impacted by the changes, Michael Bradley says that "it would comfortably be tens of thousands of people who are affected".
"The way that the law has been designed seems to be predicated on the assumption that only very small numbers of victim-survivors want to be able to tell their stories, or have control over their identification, which is a baseless assumption.
"Even if just a few hundred of them sought court orders, that would cause a logistical problem for the courts.
"I would describe the current state of the Victorian laws as an illogical, incoherent mess. They have made it harder practically, legally and financially for victims to retake ownership of their identity and stories."
For Maggie and Melissa, though, they are determined to push on and secure court orders to draw attention to the need for further reform.
"I want to regain my power over the whole situation" says Maggie.
"I want to be an example for my kids and show them that you never give up. You fight for what you truly believe in. And I am not going to have another door slammed in my face.
"Victims have been through enough. We have come forward. We've done the right thing.
"My sister was killed because she spoke out about the fact she was being sexually abused. Now I am my sister's voice and I am going to fight for her, and others who are still silenced and who still can't speak.
"These laws have to change. I choose where my story ends."
*Names changed for legal reasons.
Nina Funnell is the creator of the #LetUsSpeak campaign which will feature on tonight's episode of The Project. To donate to the campaign click here.
This article was supported by the Judith Neilson Institute for Journalism and Ideas. Know more? Contact: firstname.lastname@example.org
Originally published as New law a 'major victory for paedophiles'