Profound frustration for victims of abuse

MARCH 3, 2020 could have been a true watershed for Australian survivors of sexual assault.

South Australia quietly passed a bill repealing the draconian law which protected the identity of sexual assault defendants until committal for trial.

Tasmania announced a sweeping package of three bills aimed at reforming the law concerning sexual violence in that state, one of which promised to give survivors the right to consent to being identified: something previously absent from Tasmanian law.

Both of these changes were long-awaited and equally important.

But while the law passed by South Australia was the culmination of swift, decisive leadership, the ineffectual Tasmania bill is a tremendous loss of opportunity.

The change required in Tasmanian to allow for consent was simple.

Section 194K of the Evidence Act already provides that it is an offence to identify the complainant in a sexual offence case.

All the bill had to do was add an exemption providing that no offence was committed if an adult complainant, with capacity, authorised his or her identity to be revealed.

Instead, the consent provided in the bill is hamstrung by the additional requirement that no one can publish a survivor’s story in his or her own name until after the court proceedings for the relevant alleged crime or offence are finally determined or otherwise disposed of.

Taking into account the length of the appeals process, that could be years after a person is charged.

Publish any earlier and you face two equally punitive outcomes.

Either you commit a contempt of court or, if in the alternative, the state prosecutes the breach as an offence, the applicable penalties are a $65,200 fine for a body corporate or a fine, 12 months jail or both for any individual convicted.

The only other exception is for a survivor to obtain a Supreme Court order authorising identification.

I have the greatest respect for how the court deals with such applications, having been involved in one which concluded in 2019 with a survivor being granted an order permitting her to identify herself.

But why should any survivor have to go through — and find a way to pay for — this additional process when providing for consent at any time is so straightforward?

How little regard must parliament have for the ability of survivors to make their own decisions that they retain the Supreme Court as babysitter.

And who does this actually benefit?

Not my client: the Mercury gets the same word length from a report about a sexual assault case either way. Not the survivor, who wants to tell his or her own story.

That voice gets lost stuck on the sideline until some arbitrary passage of time elapses.

The only people who really benefit are the types of Nicolaas Bester.

For years, he controlled how his case was discussed because he was free to speak in his own name about his convictions in any manner of his choosing: and he did just that.

It was only after the woman he abused got a court order allowing her to be identified that any kind of balance was struck.

I don’t for a minute suggest that in tabling the bill in this form that parliament intends to support sexual offenders.

Rather, I’m frustrated for the minority of Tasmanian survivors this bill profoundly effects.