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Reform for sexual assault bill littered with ‘problematic provisions’
A bill that would prevent sexual assault victims from being named without their consent has been criticised for its “gag” effect and has ignited calls for further consultations.
Naomi Neilson
Legislation that was designed to prevent victims of sexual assault from being identified without consent, even after death, has been criticised by the legal profession for errors that would make victims and their families obtain a court before publishing their names.
The Law Institute of Victoria’s (LIV) criminal law section co-chair Mel Walker noted the intentions were to reform the processes of safely identifying victims of sexual offending and maintain the prohibition against the identification of a deceased person as a victim.
“This would respect the continued protection of a victim’s right to anonymity after death. Identifying a deceased person as a victim of sexual assault is a complex issue and it’s often in these sensitive and distressing circumstances that the need for robust judicial oversight is warranted,” Ms Walker said.
“The court must take into account the views of family members, who may present valid opposing opinions, to ensure the release of highly sensitive material has been properly considered and in the public interest.”
This is in contrast to where a victim gave their consent to release material prior to their death. The overriding purpose of the regulations is to “protect victims” and ensure that a person who wanted anonymity during their life should not have it waived after death.
Marque Lawyers, along with End Rape on Campus Australia and the Rape and Sexual Assault Research and Advocacy groups, took a different take on the bill’s reforms. It has explicitly stated that the court must take into account the views of the victim, if known, and those of the victim’s family members as well as fulfil a public interest requirement.
“This is extremely problematic,” the statement read, adding there was no consultation and while future consultation has been problematic, it would occur after the bill passes.
Until now, the law has been ambiguous on whether the media and others can identify the deceased sexual assault victims. This bill would make it explicit that it will now be a crime to name these individuals, absent a court order. It would also be an offence to have family members self-identify if it would indirectly name a deceased victim.
“This will have an immediate gag effect. They are essentially replacing one gag law with another but claiming that this has – in fact – always been the law, which the media and relatives have been breaking for decades,” the statement set out.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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