Victim agency and the ethics of reporting sexual violence

Journalists are able to provide agency and a voice to victims of crimes by providing a platform from which victims can share their experiences.[1] This is highly beneficial to society not only because it allows us to hold perpetrators of crimes responsible and support victims, but it also allows us to examine potential flaws in our culture and laws.[2] This has been demonstrated in recent discussions and reforms made to gag laws regarding victims of sexual assaults. With Australia currently settling into its own #metoo moment, it is important for journalists to understand and operate within the ethical and legal bounds of reporting sexual assault cases.[3]

Laws regarding the identification of sexual assault victims vary from state to state. Primarily, these laws serve to protect the identity of sexual assault victims from potential exploitation in the media during what can understandably be a vulnerable time.[4] However, these laws also have an unintended consequence of silencing victims when they are consenting to their story being shared, allowing perpetrators of such crimes to often have a greater voice in the media landscape than their victims.[5] Preventing victims from sharing their experiences of sexual assault limits our ability to not only empathise with victims, but to look critically at the systems, laws and cultures that may be enabling such crimes to be committed.[6]

Currently, all states and territories in Australia require victims to be 18 years or older at the time of publication of their identity with the exceptions of New South Wales which allows identification from 14 years and the Australian Capital Territory which does not have an age-based restriction.[7] Victoria also make an exception for minors to be identified if they have written approval from an independent authorised person such as a doctor or psychologist demonstrating their understanding of “what it means to be identified as a victim of sexual assault and the consequences of losing anonymity”.[8] Queensland, Tasmania, Northern Territory and Western Australia all currently require victims to have the “mental capacity” to provide consent which must be provided in a written format prior to publication.[9] In all Australian states and territories, it is currently illegal to identify a victim of sexual assault if that identification will indirectly or directly reveal the identities of other survivors. See the below table for an outline of how the laws vary between states[10]:

	NSW	ACT	SA	VIC	QLD	WA	TAS	NT
Victim over 18yrs at time of publication.			X	X	X	X	X	X
Victim over 14yrs at time of publication.	X
No age restrictions on identification of victim.		X
Victim has provided consent in writing.				X	X	X	X	X
Victim has mental capacity to provide consent.					X	X	X	X
Other victims are not directly or indirectly identified.	X	X	X	X	X	X	X	X
Legal proceedings are finalised including appeals.							X	X
Victim undue 18yrs with written approval of independent authorised person.				X
Tailored consent from victim of what can be published and where.				X

Whilst recent reforms have allowed more flexibility in the publication of stories regarding sexual assault victims, there are still laws which prevent all victims from consenting to their identification in the media.[11] Journalists currently risk fines and jail time in Tasmania and the Northern Territory if they publish the identity of a victim of sexual assault whilst a case is currently under legal proceedings including appeals, even if the victim has provided written consent.[12] An historical example of this risk can be demonstrated by R v Haley in which Davies Brother Pty Limited were convicted of contempt of court and fined $20,000 for the publication of the identity of a victim of sexual assault.[13] This victim was over 18 at the time of publication and had provided full consent, however the case still resulted in a conviction.[14]

This gag law is currently preventing Northern Territory woman, Sandra*[15], from identifying herself in the media, limiting her agency in sharing her experience of sexual assault. Kevin Willcocks was sentenced to three-and-a-half years prison in May 2019 for raping a woman at a buck’s party.[16] The conviction is now under appeal before the Supreme Court of the Northern Territory, preventing Sandra* from identifying herself via the media.[17] Sandra* has the option of applying for a court exemption for this order, however she would need to afford the legal costs associated with the application, an option which is not always viable for individuals.[18] The limitations placed on Sandra* identifying herself in the media have consequences not only for the agency provided to the victim but also to the wider discourse around experiences of sexual violence.[19]

The #LetHerSpeak campaign has provided a guideline for future reforms to these laws which will ensure victims have greater agency in sharing their stories whilst still being protected from potential media exploitation. They suggest that the age of consent for identification should be 18 years across all states and territories, citing the age as a safe threshold as individuals must be 18 to drink, vote and enter legally binding contracts.[20] #LetHerSpeak state victims should also have the right to identify themselves in the media regardless of legal proceedings which may be outstanding.[21] They have also suggested making reforms to laws in order to provide individuals the ability to self-identify “via social media or other media” instead of “third-party publishers such as media organisations”.[22] There is also room to consider the extension of Victoria’s laws to other states which provide victims the ability to tailor their consent on which information they would like to disclose and where it should be published.[23] This may provide victims with stronger agency and protections in the publication of their stories and identities. However, this would need to be delicately managed by journalists in order to balance the public interest, presentation of facts and the privacy requests of the victim.

The publication of stories regarding the personal experiences of sexual violence can foster a more nuanced discussion how and why sexual assaults occur.[24] Journalists are continually evolving in their understanding on how their reporting can impact the public’s understanding of sexual and domestic violence.[25] By allowing victims to consent to identification, the media, and society as a whole, will be better equipped to hold perpetrators to account while supporting victims and dismantling systems which enable cycles of abuse to persist. [26]

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[1] Jessica C Oldfield and Dave McDonald, ‘‘I Am That Girl’: Media Reportage, Anonymous Victims And Symbolic Annihilation In The Aftermath Of Sexual Assault’ (2021) Crime, Media, Culture: An International Journal.

[2] End Rape On Campus Australia and Marque Lawyers, Submission to Department of Justice, Parliament of Tasmania, Submission: Section 194K of Evidence Act 2001 (5 May 2019) p.5.

[3] Damien Cave, ‘‘The Most Unsafe Workplace’? Parliament, Australian Women Say’ New York Times (2021) <https://www.nytimes.com/2021/04/05/world/australia/parliament-women-rape-metoo.html&gt;.

[4] Jessica C Oldfield and Dave McDonald, ‘‘I Am That Girl’ p.3.

[5] Ibid.

[6] ‘About The Gag Laws | #LetHerSpeak’, Let Her Speak, (Webpage, 2021) <https://www.letusspeak.com.au/about-the-gag-laws/&gt;.

[7] Evidence Act 1906 (WA) s.36C; Sexual Offences (Evidence and Procedure) Act 1983 (NT); Criminal Law (Sexual Offences) Act 1978 (QLD) s.10; Crimes Act 1900 (NSW) s.578A; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s.74 Prohibition of publication of complainant’s identity; Evidence Act 2001 (TAS) s.194K; Judicial Proceedings Reports Act 1958 (VIC) s.4; Evidence Act 1929 (SA) s.71A.

[8] ‘Making It Easier For Victim-Survivors Of Sexual Offences To Tell Their Stories’, Department of Justice and Community Safety (Webpage, 2021) <https://www.justice.vic.gov.au/victim-survivor-stories&gt;.

[9] Evidence Act 1906 (WA) s.36C; Sexual Offences (Evidence and Procedure) Act 1983 (NT); Criminal Law (Sexual Offences) Act 1978 (QLD) s.10; Crimes Act 1900 (NSW) s.578A; Evidence Act 2001 (TAS) s.194K.

[10] Evidence Act 1906 (WA) s.36C; Sexual Offences (Evidence and Procedure) Act 1983 (NT); Criminal Law (Sexual Offences) Act 1978 (QLD) s.10; Crimes Act 1900 (NSW) s.578A; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s.74 Prohibition of publication of complainant’s identity; Evidence Act 2001 (TAS) s.194K; Judicial Proceedings Reports Act 1958 (VIC) s.4; Evidence Act 1929 (SA) s.71A.

[11] ‘About The Gag Laws’, Let Her Speak, (Webpage, 2021).

[12] Sexual Offences (Evidence and Procedure) Act 1983 (NT); Evidence Act 2001 (TAS) s.194K.

[13] R v Haley (2012) TASSC 86.

[14] Ibid.

[15] *Name has been changed for legal reasons.

[16] Jacqueline Breen, ‘Man Jailed Over Rape Of Darwin Buck’s Night Performer’, Australian Broadcasting Corporation (2021) <https://www.abc.net.au/news/2019-03-04/nine-months-jail-for-man-convicted-darwin-bucks-night-rape/10867344&gt;.

[17] The Queen v Willcocks (2018) NTSC 21.

[18] End Rape On Campus Australia and Marque Lawyers, Submission: Section 194K of Evidence Act 2001 (5 May 2019) p.15.

[19] Michelle Dunne Breen et al, ‘Exploring Australian Journalism Discursive Practices In Reporting Rape: The Pitiful Predator And The Silent Victim’ (2017) 11(3) Discourse & Communication, p. 252.

[20] End Rape On Campus Australia and Marque Lawyers, Submission: Section 194K of Evidence Act 2001 (5 May 2019) p.17.

[21] ‘Where To In 2021? | #LetHerSpeak’, Let Her Speak, (Webpage, 2021) <https://www.letusspeak.com.au/where-to-in-2021/&gt;.

[22] End Rape On Campus Australia and Marque Lawyers, Submission: Section 194K of Evidence Act 2001 (5 May 2019) p.18.

[23] Judicial Proceedings Reports Act 1958 (VIC) s.4.

[24] End Rape On Campus Australia and Marque Lawyers, Submission: Section 194K of Evidence Act 2001 (5 May 2019) p.23.

[25] Denise L Bissler and Joan L Conners, The Harms Of Crime Media (McFarland, 2012) p.18.

[26] Ibid., p.19.

See full bibliography here.