Abuse suf­fer­ers de­mand to have their voice heard as they try to change NT laws

Abuse suf­fer­ers de­mand to have their voice heard as they try to change Ter­ri­tory laws

NT News - - NEWS - NINA FUNNELL

This law is wrong ... it shields per­pe­tra­tors from hav­ing to face up to the pub­lic con­se­quences of their own ac­tions SEX­UAL AS­SAULT SUR­VIVOR JANE DOE

JANE Doe* wants to speak.

Groomed, mo­lested and re­peat­edly raped as a 15year-old high school stu­dent by her then 58-yearold high school maths teacher Ni­co­laas Bester, Jane Doe now wishes to waive her right to anonymity and tell her story.

But an out­dated law which only ex­ists in Tas­ma­nia and the North­ern Ter­ri­tory won’t al­low rape sur­vivors to be iden­ti­fied un­der their real name, even with their full con­sent.

If Jane Doe does speak out un­der her real name, this pub­li­ca­tion and any other pub­li­ca­tion which names her could be pros­e­cuted and found in contempt of court.

Now aged 23, Jane Doe has had sev­eral years to re­flect on the in­sid­i­ous groom­ing which the court heard took place at the elite St Michael’s Col­le­giate School in Tas­ma­nia, and the flawed ju­di­cial sys­tem which sen­tenced her pae­dophile teacher to just two years and six months im­pris­on­ment for “ap­prox­i­mately 20-30” in­stances of rape com­mit­ted against her at 15.

At the time of his ar­rest the teacher, Ni­co­laas Bester, was also found to be in pos­ses­sion of 28 images of child pornog­ra­phy on his com­puter, in­clud­ing images of adults en­gaged in pen­e­tra­tive sex­ual acts with chil­dren.

Af­ter serv­ing 22 months in prison for the rapes and the child pornog­ra­phy of­fences, Bester was granted an early re­lease in 2013.

In 2015, he re­of­fended by cre­at­ing child ex­ploita­tion ma­te­rial for which he was sen­tenced to an ad­di­tional four months in prison.

A year ago Jane Doe made the brave de­ci­sion that she was fi­nally ready to waive her right to anonymity and speak out in the hope of chal­leng­ing the stigma around sex­ual as­sault.

She also wishes to raise pub­lic aware­ness about the red flags of child groom­ing to pre­vent oth­ers go­ing through the “hell” she went through.

“Not nearly enough is known about the typ­i­cal per­son­al­ity pro­files of preda­tors, how they op­er­ate, nor the pro­cesses by which they care­fully se­lect, con­di­tion and ma­nip­u­late their vic­tims, as well as their vic­tims’ friends and fam­ily mem­bers,” says Jane Doe.

“It can take the bet­ter part of a life­time for sur­vivors to make sense of their per­sonal ex­pe­ri­ences. It wasn’t un­til al­most seven years af­ter com­ing for­ward that I thought to learn more about the var­i­ous cal­cu­lated stages of groom­ing.”

DUE to an ob­scure sec­tion of the Tas­ma­nian Crimes Act, Jane Doe is un­able to speak — at least not un­der her own name.

The law, known as Sec­tion 194K of the Crimes Act, ef­fec­tively pro­hibits sex­ual as­sault vic­tims from be­ing iden­ti­fied, even with their full co-op­er­a­tion and con­sent.

While the law was orig­i­nally in­tended to shield vic­tims from the stigma of sex­ual as­sault, and pre­vent ex­ploita­tive jour­nal­ists from co­erc­ing vic­tims into telling their sto­ries, Jane Doe says the law goes too far by si­lenc­ing vic­tims and strip­ping them of the right to be heard.

“This law is wrong. While well in­ten­tioned, it doesn’t pro­tect sur­vivors from me­dia ex­ploita­tion. Rather it shields per­pe­tra­tors from hav­ing to face up to the pub­lic con­se­quences of their own ac­tions.”

In the North­ern Ter­ri­tory the equiv­a­lent law is con­tained in the Sex­ual Of­fences (Ev­i­dence and Pro­ce­dure) ACT, which pro­hibits jour­nal­ists re­veal­ing “the name, ad­dress, school or place of em­ploy­ment of a com­plainant of any other par­tic­u­lar likely to lead to the iden­ti­fi­ca­tion of a com­plainant, un­less the court makes an or­der to the con­trary”.

And it’s a law Dar­win sur­vivor An­gela* also wants changed.

“Af­ter a le­gal bat­tle about us, isn’t it fair that we get a chance to speak?” she asks.

An­gela — who also can­not be named un­der the law, even if she con­sents — says al­low­ing vic­tims to be to tell their own story can be an im­por­tant part of sur­vivors’ heal­ing process.

“They’ve just been through a sys­tem that has min­imised them down to the act that was forced onto them, it’s a chance for them to be a real per­son again,” she says.

“What’s more im­por­tant is that vic­tims have the choice as to whether they share their story.

“The abil­ity to make that choice gives a lit­tle power back to some­one who has had so much taken from them.

“By gag­ging vic­tims against their will, you’re rob­bing them of their own unique voice. For change to hap­pen more voices need to be heard.”

Mean­while, Jane also be­lieves she is en­ti­tled to a fair right of re­ply against her abuser who has spo­ken out to me­dia to dis­cuss his ver­sion of the crimes.

In a re­cent video (since re­moved from YouTube) Bester be­moaned the “dev­as­tat­ing” im­pact his crimes have had on his own life in­clud­ing his “loss of sta­tus” in the com­mu­nity.

In 2015, how­ever, it was a very dif­fer­ent story, when Bester openly bragged about the rapes in com­ments he pub­lished on so­cial me­dia.

“Judg­ing from the emails and tweets I have re­ceived, the ma­jor­ity of men in Aus­tralia envy me. I was fifty-nine, she was fif­teen go­ing on twenty-five … it was awe­some,” he wrote.

The com­ments also in­cluded graphic de­scrip­tions of the sex­ual abuse which news.com.au will not re­pro­duce for le­gal and eth­i­cal rea­sons.

Jane says she was “dis­gusted be­yond be­lief” by Bester’s com­ments, but also by the fact she can­not pub­licly re­spond in per­son.

“Jour­nal­ists, com­men­ta­tors, and even my per­pe­tra­tor have all been able to pub­licly dis­cuss my case. I’m the only one who is not al­lowed to. It’s not just il­log­i­cal, it’s cruel. I shouldn’t be forced to stay hid­den in the shad­ows. The shame sits with him, not me.”

THE laws which cur­rently pre­vent Jane Doe and An­gela* (who was an adult at the time of her at­tack) from be­ing named don’t sim­ply ap­ply in cases where vic­tims were un­der­age at the time of the of­fence.

In Tas­ma­nia and the North­ern Ter­ri­tory, adult rape sur­vivors are also not per­mit­ted to freely dis­cuss their as­saults un­der their real name to me­dia, and pub­li­ca­tions that re­veal their iden­ti­ties can be pros­e­cuted for do­ing so.

In 2012, The Sun­day Tas­ma­nian news­pa­per was pros­e­cuted and fined $20,000 when a woman who had been raped in her liv­ing room, spoke out to the news­pa­per in Jan­uary of that year, us­ing her real name.

While the story was sym­pa­thetic to the woman, and was told with her ex­plicit con­sent, the pa­per’s pub­lisher was con­victed of contempt of court un­der Sec­tion 194K and fined $20,000 plus costs.

The case caused sig­nif­i­cant con­cern for jour­nal­ists and ed­i­tors, in­clud­ing those in main­land Aus­tralia who are also pro­hib­ited from re­veal­ing the names of sex­ual as­sault sur­vivors in in­stances where the crime took place in Tas­ma­nia.

In the North­ern Ter­ri­tory jour­nal­ists who re­veal the names of rape sur­vivors even with their full co-op­er­a­tion, can also be fined in ex­cess of $6000 or face up to six months jail.

ONE man who has been fight­ing th­ese laws is sex­ual as­sault sur­vivor and sur­vivor ad­vo­cate, Steve Fisher who suc­cess­fully sought a court or­der which al­lowed him to speak pub­licly about his abuse.

Be­tween the ages of 12 and 15, Steve Fisher was abused by Garth Stephen Hawkins, a for­mer Angli­can Rec­tor in the parish of East Devon­port in Tas­ma­nia.

The abuse against Mr Fisher con­tin­ued be­tween 1979 and 1983. In 2003 Hawkins was con­victed and sen­tenced to seven and a half years in jail for mul­ti­ple sex­ual of­fences against seven boys be­tween 1974 and 1984.

Fol­low­ing the con­vic­tion, Fisher

was de­ter­mined to tell his story. Fight­ing through the Supreme Court, Fisher suc­cess­fully con­vinced the judge he should be granted a court or­der ex­empt­ing him from Sec­tion 194K of the Crimes Act.

But the process was nei­ther cheap nor straight­for­ward, and the le­gal fees ran into sev­eral thou­sand dol­lars.

“The thought that I wouldn’t be able to speak out af­ter his trial was over hor­ri­fied me and I’m just very lucky that the me­dia were will­ing to pay for the court costs for me, be­cause I cer­tainly didn’t have the money or the re­sources to put into the ap­pli­ca­tion,” Mr Fisher says.

“The process was re­ally stress­ful. I had to write out a whole state­ment about why I wanted to speak. It was a re­ally, re­ally com­pli­cated process, and at the same stage (hav­ing just been through a trial) it’s an­other thing you don’t want to go through.

“I was re­ally fear­ful that I would not get the ex­emp­tion and I would not be able to keep talk­ing about all the is­sues sur­round­ing sur­vivors. I don’t like the thought of any­one go­ing through that process.”

Mr Fisher, who had al­ready per­formed years of sur­vivor ad­vo­cacy work, even­tu­ally proved to the judge that it was in the pub­lic in­ter­est that he could con­tinue to do that work, but the process sig­nif­i­cantly added to his stress.

Since then he has been push­ing for law re­form in Tas­ma­nia so that in­di­vid­u­als such as Jane Doe do not need to go through the same process.

“I was the first per­son in Tas­ma­nia to be granted that court or­der on the ba­sis that it was in the pub­lic in­ter­est that I could speak,” Mr Fisher says.

“Abuse vic­tims know when they are ready to talk pub­licly. It’s con­de­scend­ing of the courts to tell them oth­er­wise.

Jane Doe agrees.

“In the­ory I can ap­ply for an ex­emp­tion by the Supreme Court but this would likely cost thou­sands of dol­lars. Vic­tims should not be fi­nan­cially pe­nalised for want­ing to speak out to raise aware­ness” she says.

“And even if I am granted the ex­emp­tion, what about the next vic­tim who comes af­ter me? The law needs to be per­ma­nently amended so that vic­tims can elect to speak.”

A sim­i­lar sit­u­a­tion to Steve Fisher’s oc­curred in the NT in June last year when the Cen­tralian Ad­vo­cate ap­plied to the Supreme Court to name the vic­tims of Ten­nant Creek abuser Clif­ford John O’Brien.

The news­pa­per was ap­proached by Philip Krak­ouer, who was abused by O’Brien as a child, and wanted to tell his story in the hope of giv­ing a voice and sup­port to any­body else in their po­si­tion.

At the time, Act­ing Jus­tice Brian Mar­tin agreed to lift re­port­ing re­stric­tions “with an abun­dance of cau­tion”, al­low­ing the Ad­vo­cate to iden­tify Mr Krak­ouer with his con­sent.

“I know he’s locked up, the jury found him guilty, I’m happy with that,” Krak­ouer told the pa­per.

“Come for­ward if you’re in the same po­si­tion as me, don’t be ashamed. The truth will set you free.”

IN sol­i­dar­ity with Jane Doe, more than a dozen rape and sex­ual as­sault sur­vivors from around Aus­tralia have come to­gether to de­mand law re­form so that Jane Doe and other sex­ual as­sault sur­vivors in Tas­ma­nia and the North­ern Ter­ri­tory can speak out if they so choose.

The group of sur­vivors in­cludes au­thors Tara Moss, Bri Lee and Jane Caro, MP Jenny Aitchi­son, and var­i­ous other women who have spo­ken to the me­dia about their own ex­pe­ri­ences of al­leged sex­ual as­sault and rape in­clud­ing Saxon Mullins, Van Bad­ham, Joanna Wil­liams, Jan­nika Jacky, Codie Bell and Freya Wil­lis.

The cam­paign — #LetHerS­peak — aims to amend the laws so any sur­vivor over the age of 18 can waive their right to anonymity if they so choose, with­out risk­ing pun­ish­ment to them­selves or any me­dia out­let which pub­lishes their story with con­sent.

The cam­paign is a col­lab­o­ra­tion be­tween sur­vivor ad­vo­cacy group, End Rape On Cam­pus Aus­tralia, Mar­que Lawyers, and News Corp Aus­tralia, and as part of the cam­paign a pe­ti­tion has been launched on Mega­phone.

The Tas­ma­nian At­tor­ney-Gen­eral, Elise Archer, has re­sponded to the cam­paign say­ing the “Tas­ma­nian Gov­ern­ment is con­sid­er­ing Sec­tion 194K to en­sure that it ap­pro­pri­ately pro­tects the rights of all vic­tims of sex­ual as­sault”.

“We are ex­tremely mind­ful that care must be taken in this area of law, as it is im­por­tant that any re­form strikes the ap­pro­pri­ate bal­ance be­tween pro­tect­ing vic­tims of sex­ual as­sault and the para­mount pub­lic in­ter­est in open jus­tice,” Ms Archer says.

“It is im­por­tant that ap­pro­pri­ate checks are in place to en­sure that where one vic­tim may wish to pub­licly speak of their ex­pe­ri­ence, that such ac­tion does not un­duly im­pact on other vic­tims (such as may be the case with sib­lings or class­mates who may be in­ad­ver­tently iden­ti­fied).”

NT At­tor­ney-Gen­eral Natasha Fyles was sim­i­larly cir­cum­spect, say­ing only that the gov­ern­ment would keep an eye on the sit­u­a­tion in Tas­ma­nia.

“We will care­fully mon­i­tor changes to leg­is­la­tion in other ju­ris­dic­tions and their im­pact, but as it stands, th­ese changes could iden­tify vic­tims — and a Ter­ri­tory La­bor Gov­ern­ment will al­ways put the pri­vacy and needs of vic­tims first,” she says.

But Ms Brem­ner says that other states and ter­ri­to­ries al­ready have clear pro­vi­sions to deal with such cir­cum­stances and that Tas­ma­nia was drag­ging its heels.

“Th­ese is­sues have been on the ta­ble since at least 2003. Re­form is well and truly over­due.”

Five years ago a re­port by the Tas­ma­nia Law Re­form In­sti­tute re­view­ing Sec­tion 194K also high­lighted many of the cur­rent con­cerns re­gard­ing sti­fling vic­tim’s free­dom of speech.

“As a com­mu­nity, it’s time to come to­gether to push through the re­forms” says Ms Brem­ner. “Jane Doe has a right to speak. Her voice mat­ters. It’s time to say #LetHerS­peak.”

— with ad­di­tional re­port­ing by Ja­son Walls

If you or some­one you know is af­fected by sex­ual as­sault, please call 1800 RE­SPECT (1800 737 732).

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