By Poppy Morandin and Jimmy Singh.
Changes to Victoria’s Judicial Proceedings Reports Act have stopped survivors of sexual assault in Victoria from utilising their real names when publicly sharing their stories of abuse.
The recent changes, which took effect in February 2020, mean that it is now an offence (https://content.legislation.vic.gov.au/sites/default/files/33628e6a-0343-36fe-a082-4e69641c138d_58-6280aa044%20authorised.pdf) for victims, as well as others, including media publications, to publish the identity of a victim, or information which could reveal the identity of a victim, if proceedings are pending and even when a defendant is found guilty.
The only way in which identity may be revealed is if the victim seeks a court order and is granted one by the court, thus authorising the publication of their identity.
Notably, the laws apply irrespective of when the crime occurred or when the relevant conviction, if any, was handed down.
Victims who were able to publicly speak out in the past, are now required to obtain the court order if they wish to continue to be identified.
The exception to this is for victims who have not reported their experience to police, or no charges have been laid.
“It really seemed outrageous because the impact it has on victims is significant and its disappointing to see that the victims welfare wasn’t the primary concern in terms of these changes.” said Manny Waks, Jewish community leader, activist, and sexual abuse survivor.
“It causes a very detrimental impact in a variety of ways, even just the feeling of being left to fend for themselves, often after decades of suffering and not disclosing it – often for decades, mustering the courage to pursue some sort of process and then to be told that you need to remain silenced.
“It would be disempowering and deter victims from engaging in the judicial process.” he summarised.
The penalty for acting in contravention to the law is a fine of up to $3,304.40, or 5-months imprisonment, or both for individuals.
If a corporation is found guilty, such as a media organisation, they can be fined up to $8,261.
“A victim shouldn’t have to think about those kind of consequences, because it adds to their stress, and to their pain and suffering.” said explained Mr Waks.
The process of obtaining a court order will require victims to be over the age of 18, have the relevant mental capacity, and to swear an affidavit (a written statement) to the court.
It also evidently involves the payment of a court application fee and other legal costs.
“It costs thousands of dollars to make such an application, you have to go through lawyers and the court process…it adds to the stress and suffering because you have to go through yet another step in this lengthy process,” added Mr Waks.
The changes have been described as an ‘unintended consequence’ when aiming to reform the state’s evidence laws, with the purpose to address a ‘culture of suppression;’ and to encourage open justice, as stated by Victorian Attorney-General Jill Hennessy.
Advocates have slammed the new laws, with the #LetUsSpeak (https://rasara.org/let-us-speak)/ #LetHerSpeak campaign directed at their reform.
The campaign is a collaboration between End Rape On Campus Australia, Marque Lawyers and Rape & Sexual Assault Research & Advocacy initiative.
“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.”stated Mrs Hennessy.
“It seems to be taken seriously at this stage, they need to ensure that this issue is resolved immediately so that victims and survivors can feel that sense of empowerment back,” said Mr Waks.
Sexual assault is already an offence in which reporting rates and attrition rates are notoriously low (https://www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/abstract_fitzgerald-attrition_of_sexual_offences.html#d5e11638).
Only 15% of incidents involving a child victim and 19% of incidents involving an adult victim result in the initiation of criminal proceedings against a suspect, and furthermore for those small proportion of cases that do reach court, less than 50% of defendants are found guilty.
This is often due to issues with evidence and the process faced by victim-survivors engaging with the criminal justice system.
“There is a lot of fear and uncertainty in engaging with the process, often it is lengthy in most cases we know that cases don’t proceed beyond a complaint to police and investigation, due to lack of evidence for example and even with those minority of cases that actually make it to the next step, a majority of cases do not end up with a conviction, not necessarily because the individual is innocent but because of a lack of evidence, or a technicality, and this adds another layer of deterrence for victims who are often vulnerable and went through significant trauma, it really deters them from engaging with the process.” summarised Mr Waks.
In his own heroic experience with the criminal justice system, Mr Waks made a formal request with the Judge presiding over the case of his abuser David Cyprys’ (https://www.theage.com.au/national/victoria/david-cyprys-jailed-after-rape-sexual-assaults-20131220-2zp7f.html) case, to allow himself and the media to publicly state that he was his victim, which the judge granted.
Mr Cyprys was found guilty of five counts of rape at a trial and pleaded guilty to a further 12 charges, including five counts of indecent assault and four of procuring an act of gross indecency.
“I did not want to be silenced any longer. I did not want to hide any longer,” said Mr Waks.
Have a question on this topic? Call our Sydney, Parramatta or Blacktown criminal lawyers (https://www.criminaldefencelawyers.com.au/criminal-lawyers-blacktown/) today for a free consult.
Penalties on Publishing the Identity of a Victim of a Prescribed Sexual Offence in NSW
Contrastingly, in NSW, publications of victim-survivors identities may be made with the authorisation of the Judge or Justice presiding in the proceedings concerned or with the consent of the complainant if they are 14 years old or over at the time of publication, among other avenues pursuant to section 578A(4) of the Crimes Act 1900 (NSW).
Otherwise, it is a crime to publish any matter that identifies the complainant or victim in a prescribes sexual offence (https://www.criminaldefencelawyers.com.au/blog/defences-and-penalties-for-sexual-assault-offences-in-nsw/), or any matter that is likely to lead to the identification of the same in NSW. This applies even if the court proceedings have been finalised.
An individual who is found guilty of this offence will face up to $5,500 fine or 6-months imprisonment, or both. In the case of a corporation, the maximum penalty is $55,000.
Prosecuting someone for this offence in the local court is limited to a period of within 2-years from the date of the alleged offence. Otherwise, proceedings against that person or corporation in the local court is generally prohibited.