Rape survivors who are silenced under Victoria’s new victim gag-laws are being ordered by the courts to seek out their offender’s views and input, if they hope to be exempted them from the new gag restrictions.
Last week, News.com.au and the Herald Sun exclusively launched the #LetUsSpeak campaign, revealing that in February this year, new state laws were quietly introduced which gag all sexual assault survivors in cases which have resulted in a guilty verdict.
The only exception is if the survivor returns to court and is granted a court order allowing them to be identified. Since last Wednesday more than $60,000 has been raised to help cover victims’ legal and application fees.
But now, Maggie* – one of the rape survivors who spearheaded the #LetUsSpeak campaign – has been told by the Victorian County Court that she must first seek the views of the man who raped her before she applies for the exemption.
“My first reaction is to tell them to just forget it. I don’t want anything to do with it if that’s what they are going to make me do. It infuriates me that he has a say. They don’t have the right to involve him.”
Maggie’s father repeatedly molested and raped her from age 8, before he murdered Maggie’s older step-sister when she reported him to police for abusing her too.
“If I have to ask his permission to tell my story now, then I’ll just say ‘no’. And I’ll hate the law forever because yet again they have deterred me and let me down.”
“It gives him all the power. It takes me back to when I was a child I had to shut up and do what he said.
Maggie’s lawyer Michael Bradley, managing partner of Marque Lawyers, said the laws had created “an illogical incoherent mess.”
“We were shocked when the initial response we got from the court was that they wanted us to contact the perpetrator to get his consent or views on whether our client should be allowed to identify herself.
“That’s patently outrageous and even having to let our client know that was the court’s attitude was a traumatic experience for her.
“It speaks to an almost complete lack of understanding of what the priorities should be in these situations.”
Maggie’s lawyers lodged the application for Maggie on Thursday, regardless. It does not contain any input from the convicted paedophile, which they have vowed not to seek, on principle.
Maggie says even if her lawyers had consulted the convicted paedophile, there is “no way he would agree”.
Under the current gag laws, as long as Maggie’s real name is suppressed, he will also remain de-identified by default, so as to protect Maggie’s anonymity. Their family connection makes it impossible to name one without identifying the other.
“If his victim had been a stranger then his identity would not currently be suppressed” said Mr Bradley. “He is currently receiving an accidental benefit of the law.”
Any court order allowing Maggie to be named would reverse that, enabling media to also identify him by extension too.
“He doesn’t want anyone to know he’s a convicted paedophile” said Maggie.
“He killed my sister because her actions threatened to expose him [as one]. When he [murdered her] I asked him ‘why did you do this?’ He said it’s because she was going to ruin the family name.”
“He is to shut up now. He has been found guilty of the crime and he doesn’t get a say in my life now. This is my time. My voice. My story.
GOVERNMENT TO ‘FAST TRACK’ LAW REFORM
Last Friday, following an outpouring of community outrage in response to the new laws, the Government announced that they will amend the gag-law by the end of the year.
According to the press statement: “The Victorian Government will move urgently to respond to victim-survivors who have raised concerns about their ability to share their stories.
“Attorney-General Jill Hennessy announced today that reforms will be fast-tracked to streamline processes for victim-survivors who wish to speak out.
“This change will mean the majority of victims will no longer require a court order to tell their stories if they have given informed consent to being identified.
“The Government is developing urgent amendments to be introduced to parliament this year. The changes will be progressed in close consultation with victim-survivors and those who work with them.”
GOVERNMENT KNEW OF PROBLEMS – BUT FAILED TO ACT
However it can now be revealed that despite this about-face, the Victorian Government has had knowledge of the effects of the gag-law since at least April, when fellow News Corp journalist, Sherele Moody, first approached the Victoria Attorney-General on Maggie’s behalf.
“[Maggie] approached me in good faith, believing I had the capacity to help share the story of her step-sister’s murder and her own story of rape survival” said Ms Moody.
“I went to the Attorney-General’s office around April 20, 2020, hoping for a quick resolution for what seemed to be a very stupid decision on behalf of the Government.
Ms Moody described the response she received at the time as “underwhelming” adding that it contained “platitudes for the Government”.
“The response did not acknowledge that there was a problem with the legislation change, it did not acknowledge [Maggie’s] own anguish or the impact this change would have on other survivors of sex predators.”
Ms Moody says that the Government should have actioned change from the moment she first put the issue on their radar.
“I would like to know why it took a swath of negative publicity [last week] for her to acknowledge there was an issue
“If there was an intent to do what is right by survivors, the law would have been changed as soon as possible [back in April].”
In May this year, news.com.au sent a follow up request for information. That too received a dismissive response, with the Attorney-General wrongly claiming that the laws “did not have the effect of prohibiting media outlets from identifying survivors”.
The Government’s confused response in May then put the launch of the #LetUsSpeak campaign on hold while further legal research was conducted. That research unanimously confirmed that significant and extensive errors had been made.
Dr Rachael Burgin, lecturer in the Swinburne Law School and partner on the #LetUsSpeak campaign says that “this is not a one word drafting error or ‘mistake’ as other media have naively reported. A significant rewrite is required of section 4 of the Judicial Proceedings Reports Act. The Government has not acknowledged the full extent of the error or the impact of the legislative changes on survivors.
“Along with academic and legal colleagues I have spent several months poring over the legislation. It’s not a simple error – it’s an entire series of serious mistakes that demonstrate little care was taken in the drafting of this bill.
Dr Burgin, who is also chairman of Rape and Sexual Assault Research and Advocacy, says that there needs to be an “apology and statement of recognition of the impact” in addition to meaningful reform.
In June and July further letters were sent to Ms Hennessy’s office advising the Government of various problems that Maggie’s lawyers had encountered with the court system, when seeking information about obtaining a court order. One letter included a lengthy dotpoint list prepared by Maggie’s lawyers, of all of the dramas to date and outlined how they had been shuffled from the Victorian County Court to another court, and back to the Victorian County Court.
“It was clear they had no idea what the process was and were completely ill equipped to deal with the request” said Marque Lawyers’ Mr Bradley. “There is no way a victim-survivor could navigate this process by themselves, not without some form of support or knowledge of the system. They’d need a law degree and a compass for a start.”
Maggie says that despite all these setbacks and let downs she is now determined to push on to change the system for those who come after her.
“I’m going to continue to fight so others don’t have to. We need to change it all.”
Nina Funnell is the creator of the #LetUsSpeak campaign in partnership with End Rape On Campus Australia, Marque Lawyers, RASARA and news.com.au.
Click to donate to the #LetUsSpeak campaign.
This article is supported by the Judith Neilson Institute for Journalism and Ideas.