Identification of deceased sexual offence victims – further reforms to the Judicial Proceedings Reports Act 1958

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Justice Policy and Legislation

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Table of contents

Introduction2

Background3

Recent reforms empower victim-survivors to tell their story3

Telling the stories of deceased victims of sexual assault3

VLRC recommended the prohibition on publication end on a victim-survivor’s death3

Balancing a family and their loved one’s privacy with speaking publicly4

Balancing different family needs and minimising trauma4

If the protection applies after death, who should be able to waive the protection and how should this be done?6

Who else should (and should not) be able to waive the protection?6

How should the protection be lifted?7

If the protection ceased on a person’s death, should there be a way for family to extend or reinstate the privacy protection to safeguard victims’ anonymity?8

Who should be able to apply to reinstate or extend the protection?9

Should only a court be able to extend or reinstate the protection?9

What should be considered when deciding whether to extend or reinstate the protection?9

Should different rules apply depending on the circumstances of the death?9

Immunity for past publications about deceased victims10

Support, assistance and further information11

Support for victims of crime11

Victorian Centres Against Sexual Assault11

Free legal advice11

Further information11

CONFIDENTIAL

Introduction

Please note some readers could find the following content difficult and/or distressing. Information and links to support services can be found at the end of this document.

Victim-survivors should have every right to share – or not to share – their experience of abuse. That is and should be a personal decision, and their reasons for doing so are rightfully their own.

What we do know for certain, though, is that their stories have power. They can shine a light on institutional wrongs. They can expose perpetrators. And they can empower other victim-survivors to come forward and to seek justice.

Surviving sexual assault is not and should never be a source of shame. The rights of victim-survivors to their own story must be protected – to give them the opportunity to heal, to be able to advocate for change and to help us rid our society of this violent criminal behaviour.

Recent reforms provide victim-survivors with more control over when their story is told, and how their story is told. Where a victim-survivor has consented to their story being published, that consent continues after their death. This is not, and will never be, about erasing the stories of victim-survivors, or the ability of advocates to speak out on behalf of victim-survivors. A victim-survivor who has told their story or allowed others to do so, can be reassured that their story can continue to be told after their death if that is their wish.

What we need to better understand is how families can maintain privacy in the event of a victim-survivor dying where their wishes are not known. Cases such as these raise complex and sensitive issues, including recognising that for personal, cultural or religious reasons a family may not to have their loved ones identified as a victim of a sexual offence and may experience distress when this occurs. Some families may want to talk publicly but only after and respecting the grieving period. Some family members may have differing views on whether to speak publicly. We need to understand how the law should balance freedom of expression and free reporting of issues of public interest and significant as well as removing stigma and shame with the right of families to privacy.

We also need to better understand what the best place or forum is for helping families make decisions about telling the stories of their loved ones whilst protecting their privacy. How can we make sure that families are supported through these difficult experiences?

These are challenging issues and there are no easy answers. The Victorian Government is committed to developing and implementing effective reforms – in close collaboration with victim-survivors, family members of deceased victims, media representatives and other key stakeholders.

This paper discusses some key issues that will be relevant to developing further changes to the Act in relation to deceased victims. We have included questions that you may find useful, but please do not feel limited to these questions.

Questions

We welcome feedback on any issues you think we should take into account. We are also interested in your broader experiences and insights on the following issues:

1. What was your experience of the publishing of details of your loved one? What would you wish was done differently or better?

2. What else could be done to make the law simple and accessible for family members, and minimise any associated distress or trauma?

3. Are there other issues that we should be aware of in further developing these reforms?

4. Are there any other suggestions or feedback you would like to contribute?

Background Recent reforms empower victim-survivors to tell their story

Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Act) prohibits publishing details likely to identify a person as a victim-survivor of a sexual offence.[footnoteRef:2] This section has been in place for a number of decades, and aimed to protect the privacy and anonymity of victim-survivors of sexual offences and ensure that concerns about publicity are not a barrier to sexual offences being reported and prosecuted. [2: The term ‘identifying details’ is used throughout this paper and refers to details that are likely to identify a person as a victim of a sexual offence.]

In November 2020, following extensive stakeholder consultations (and advocacy from victim-survivor campaigners), the Act was changed to make it easier for victim-survivors of sexual offences to lawfully tell their stories.[footnoteRef:3] [3: These reforms are contained in the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020, which commenced on 18 November 2020. These amendments retain the publication prohibition, in line with Recommendation 99 of the Contempt Report, and address Recommendations 103–105 of that Report. Recommendations 103-104 were to allow publication if an adult victim-survivor (who is capable of informed consent) consents in writing to publication or a court authorises publication, as long as the publication is not likely to lead to the identification of a non-consenting victim-survivor. Recommendation 105 was to allow publication of identifying details about a child-victim survivor only with court authorisation. The reforms implemented Recommendations 103-104 but departed from Recommendation 105.]

The changes allow victim-survivors to lawfully self-publish their identifying details. Most victimsurvivors can also give tailored permission for others (such as media organisations) to publish their identifying details without court involvement.[footnoteRef:4] The reforms make it clear that victim-survivors may tailor their permission, for example, by allowing their name but not their image to be published. [4: Prior to these changes, court authorisation was required to publish a victim-survivor’s identifying details if the criminal proceedings for the sexual offence were pending or had concluded with the offender’s conviction. ]

If a victim-survivor cannot provide permission for another individual to publish (for example, because they do not have the required decision-making capacity), a court order is required. The court must not consider the offender’s views, even if the offender is a family member. However, a publication, including a self-publication, will not be lawful if it is likely to identify another living victim-survivor against their wishes.

Telling the stories of deceased victims of sexual assault

The Act’s prohibition on publication begins from the time a complaint about a sexual offence is made to police. However, the Act does not spell out when the prohibition ends.[footnoteRef:5] [5: This is similar to most other Australian jurisdictions. ]

The November 2020 reforms included interim measures that:

· create a clear pathway for a person, such as family member, to seek a court order authorising publication of identifying details about a deceased victim

· set out what a court must and must not consider when deciding whether to authorise publication, and

· prohibit a court from authorising a publication that is likely to identify another living victim-survivor with capacity who does not wish to be identified.

These reforms are temporary and will stop through an automatic repeal on 1 September 2021.

VLRC recommended the prohibition on publication end on a victim-survivor’s death

The Victorian Law Reform Commission (VLRC) recommended that interested parties be able to apply to continue the prohibition where the public interest in disclosure is outweighed by the ongoing privacy interests of the deceased or other persons (Recommendation 100). The VLRC recognised that there may be circumstances in which it would be appropriate to continue to protect a victim’s privacy after their death, such as the need to protect the privacy of any affected children of the deceased.

Balancing a family and their loved one’s privacy with speaking publicly Balancing different family needs and minimising trauma

For some, speaking publicly about the experiences of their loved one as a victim of sexual offending is an important part of their healing process and serves to honour the life and memory of that person. Some families may initially not want to speak publicly and then as they move through the initial grieving period may be more comfortable with public discussion. For others, it may be the opposite, with a later desire for privacy emerging many months or years after the death.

Others, for personal, cultural or religious reasons, may not wish to have their loved one publicly identified as a victim of a sexual offence, and might experience distress where this occurs against their wishes. For example, Aboriginal, multifaith and culturally and linguistically diverse communities may have specific cultural practices or religious obligations relating to those who have died, such as modifying the deceased person’s name or suppressing their image. The way in which a person dies may further add to the trauma of bereaved relatives by affecting their ability to carry out end-of-life cultural or religious practices. Children of a deceased victim-survivor of sexual assault may have concerns about their own privacy.

Continuing the protection of an individual victim-survivor’s details and experiences after their death would automatically protect victims’ privacy. This would mean that grieving families and friends who wish to maintain their loved one’s anonymity or do not want the details of the sexual assault publicised would not have to do anything or go to court to protect that privacy.

However, to ensure that family members and others can share the stories of their deceased loved one where they choose to do so, the law could be changed to enable a designated person (for example, a family member who is the deceased victim’s senior next of kin i.e. a surviving mother or father or older sibling) to waive the protection, allowing identifying information about the deceased victim to be lawfully published. Options for how this protection could be waived and by whom are discussed later in the paper.

Alternatively, the protection could end on a victim’s death, either immediately[footnoteRef:6], or a short time afterwards (e.g. 30 or 60 days after death). This would mean that any person could publish the victim’s identity and experiences as a sexual offence victim without needing to ask for the family’s consent. [6: This would be consistent with VLRC recommendation 100 and the law in NSW (in relation to adults) and the UK. See section 578A(4)(f) of the Crimes Act 1900 (NSW) and section 1 of the Sexual Offences (Amendment) Act 1992 (UK). In NSW a different publication offence applies to deceased child victims who were involved in criminal proceedings – see sections 15A and 15E of the Children (Criminal Proceedings) Act 1987 (NSW).]

In this case, the law could include the ability for family members or friends of the victim to apply to a court or another decision making forum to extend the protection (options to extend or reinstate the privacy protection are discussed later in the paper). Continuing the protection for a short period after the victim’s death would give grieving family and friends time to consider whether they want their loved one’s privacy protected and allow time for any such applications to be made and determined.

Ending the protection on death would place greater weight on open justice and freedom of expression and raising awareness about sexual offending but may have a profound and traumatic impact on those family members that are grieving and need time. No one alternative will suit every case.

If the protection continues, family or friends may be distressed by the need to consider requests (for example, from media organisations) to waive the protection. On the other hand, ending the protection may cause distress to loved ones who want the victim’s privacy protected or who do not want particular details in the public domain. However, it could result in identifying details being published before family or friends have a chance to seek continuing protection, or even before they have heard of the victim’s death or sexual assault themselves. It could cause additional trauma for family members. Once a victim is publicly identified, the tendency for content to be shared and re-published across different platforms makes it difficult to reverse any harm caused.

The following hypothetical case studies illustrate some of the issues that may arise within different cases, families and cultures, which the law will need to balance.

While the following case studies are fictional, they have been based on concerns raised by stakeholders during consultation in September 2020. Any similarities with real people, cases or experiences are not intended and are coincidental.

[Case 1]

Victim and family have same views, religion shuns discussion of sexual assault

EF comes from a devoutly religious family. His religion shuns any discussion of sexual assault. EF was sexually assaulted and murdered in 2019 and his killer was convicted and jailed. Based on his religious practice EF’s family believes he would not have wanted to be publicly identified as a sexual assault victim. His family has also expressed a wish for him not to be identified in the media as they believe this will bring great disrespect to EF and the family.

[Case 2]

Unclear what victim’s wishes would have been, family members have different views

CD was sexually assaulted and murdered in 2019. Due to the nature of her assault and death, media outlets wanted to widely report the incident and to reveal CD’s name. CD’s parents were divorced and disagreed about whether or not they wanted their daughter’s name shared publicly. CD’s father would prefer to keep her name out of the media and ensure that her identity is protected in any publication. CD’s mother wants to speak publicly about the sexual assault to raise awareness and is confident this would align with CD’s wishes. CD’s father would like an independent avenue to resolve this disagreement.

[Case 3] Victim and family all clearly in favour of publication of identifying details

AB was sexually assaulted in 2003 and then died in 2019 of unrelated causes. Her family was understandably devastated and immediately after her death wanted to set up a campaign and publicly share AB’s story to help raise awareness about the issue of violence against women. AB had actively campaigned on these issues before her death and it was clear that she would want her story to continue to be told. AB’s family members do not want any prohibition on identifying deceased victims, as their view is that speaking out about these offences helps raise awareness which can lead to preventing violence against women in the future.

[Case 4]

Victim and family have different views about publishing details of victim’s sexual assault

GH was sexually assaulted in 2013. GH decided to report the assault to the police and once the perpetrator was convicted, she wrote a blog post about her experience even though her family disagreed with her doing this. GH later died and her family wanted to take the blog post down and prevent any other reporting about her assault.

Questions – victim-survivors and their family members

Reflecting on your own experiences, please consider the following questions:

5. How has the publication of details about you/your family member’s experiences impacted you and your family? What would you wish was done differently or better?

6. Do you think the law should also recognise and protect the privacy interests of the victim’s family and close friends? For example, how could the law recognise the potential impact of publication on children of a deceased victim, and provide protection against distress and re-traumatisation?

7. How would you react if your deceased loved one’s story was published immediately after their death, without the family’s permission?

8. What else could be done to make the process of balancing publication and privacy simple and accessible for family members, and minimise any associated distress or trauma?

Questions – general

9. Should the privacy protection apply indefinitely after a victim’s death? or

10. Alternatively, should the privacy protection end on (or shortly after) a victim’s death?

If the protection applies after death, who should be able to waive the protection and how should this be done?

If the protection continues to apply after death, there needs to be a way to allow victims’ stories to be told with a family’s consent. Consistent with the objectives of the recent reforms, this process should also be simple, accessible and minimise any potential distress and trauma for family members of the deceased victim.

A victim-survivor could waive the protection themselves by providing clear instructions to this effect prior to their death. This would give control and agency to victim-survivors. This could also be achieved by the victim-survivor providing a broad permission for publication during their lifetime.

Who else should (and should not) be able to waive the protection?

The law currently allows a ‘person with a sufficient interest’ to apply to the court to lift the prohibition after a victim’s death. Interstate laws use terms such as ‘senior available next of kin’,[footnoteRef:7] ‘next of kin’ or legal representative[footnoteRef:8] to describe the relevant person. [7: Section 15E(6) of the Children (Criminal Proceedings) Act 1987 (NSW) defines ‘senior available next of kin’ as the child’s parent or, if the parents are dead, cannot be found or cannot exercise their parental responsibilities, a person who immediately before the child’s death had parental responsibility or the Director-General of the Department of Human Services (if the child was in their care immediately before their death).] [8: In Tasmania, when considering whether to make an order for the publication of identifying details about a deceased victim, the court must be satisfied that the victim’s next of kin or legal representative has been consulted and given the opportunity to inform the court of the wishes of the deceased victim about publication, if any: Evidence Act 2001 (Tas), s.194K(5)(b). Neither ‘next of kin’ nor ‘legal representative’ are defined. ]

In Victoria, the Coroner’s Court allows the ‘senior next of kin’ a role in decision making. This term lists people in a defined order, starting with the deceased person’s spouse or domestic partner[footnoteRef:9] and makes only one person responsible for decision-making with respect to the deceased person.[footnoteRef:10] [9: Section 3 of the Coroner’s Act 2008 (Vic) defines the ‘senior next of kin’ as, in the first instance, the deceased person’s spouse or domestic partner and then, subject to availability, family members and others in the following priority: an adult child, parent, sibling, executor of deceased person’s will, personal representative, or person determined by the coroner to be taken as the senior next of kin because of the closeness of their personal relationship with the deceased person immediately before their death. ] [10: If more than one person applies to be the senior next of kin, the Coroners Court decides who to appoint as senior next of kin. ]

However, using a term such as ‘senior next of kin’ may exclude other close family members from decision making (for example, a victim’s parent if the victim has a domestic partner or a victim’s adult child). Also, these options may not appropriately reflect the role of others, such as close friends.

The court could decide whether a person has a ‘sufficient interest’ by considering factors such as the relationship between the deceased victim and the person. The term could cover a broad range of situations, for example, where the victim is estranged from their family but has communicated their wishes about publication to a good friend. An alleged or convicted offender could be excluded from being able to apply.

Alternatively, the law could allow any of the following to apply to reinstate or extend the protection:

only family members

senior next of kin/senior available next of kin, and/or

the deceased’s legal representative.

‘Family member’ is not currently defined in the Act. This has the advantage of flexibility, given that not all families look the same. However, allowing a person with a ‘sufficient interest’ to waive the protection would give the broadest coverage of these options, as it would likely cover family members (including senior next of kin), friends, and the deceased’s legal representative or executor.

In NSW, a senior available next of kin who is charged with or convicted of the offence cannot give consent or object to publication in relation to deceased child victims. This is broadly consistent with Victoria’s Act, which provides that a court must not consider the views of the offender or alleged offender.

How should the protection be lifted?

Tasmania and NSW are the only jurisdictions other than Victoria where there is a clear way to lift the protection after a victim’s death. Tasmanian law involves a court process. It does not specify who can apply for an order, but requires the court to be satisfied that ‘the next of kin’ or ‘legal representative’ of the deceased person has been consulted and given the opportunity to inform the court of the deceased’s wishes (if known).[footnoteRef:11] In NSW, a court may only lift the prohibition in relation to a deceased child victim if there is no senior available next of kin who can consent to the publication.[footnoteRef:12] [11: Section 194K, Evidence Act 2001 (Tas). ‘Next of kin’ is not defined and there is no case law to date on section 194K. However, because it refers to ‘the next of kin’ rather than ‘a next of kin’, it is clear that this is intended to be one person rather than multiple people. ] [12: Section 15E (5) of the Children (Criminal Proceedings) Act 1987 (NSW). Note that for adults, the publication prohibition does not apply after the victim’s death: section 578A(4)(f), Crimes Act 1900 (NSW).]

During the Government’s consultation on the first stage of this reform to empower victim-survivors to tell their stories, victim-survivors spoke of the trauma of having to return to court to seek permission to have the protection lifted. Noting that these decisions may be complex and involve important legal principles, could another forum or decision-maker that is less traumatic and triggering for families determine for a family whether the protection should be lifted? What forum or decision maker could that be?

It may be preferable to allow certain people, such as close family members, to waive the protection without court involvement. For example, the Act could allow a person to waive the protection by:

themselves publishing identifying details about the deceased victim, and/or

giving written permission for others to publish identifying details about the deceased victim, in the same manner that the victim can provide permission during their lifetime. This could include:

a tailored permission e.g. directed at a specific publisher, or only allowing the victim’s name but not their image to be published (as is possible for living victim-survivors under the Act), or

a broad permission applicable to anyone who wants to publish identifying details.

Questions – if the protection continues to apply after a victim’s death

11. Should victim-survivors be able to provide instructions prior to their death to waive the ongoing privacy protection after their death?

12. Who else should (and should not) be able to waive the protection?

13. How should that person waive the protection? For example:

(a) Should this be done in writing and able to be tailored, in the same manner that a victim-survivor can provide permission?

(b) Should that person be able to waive the protection without court involvement? If not, why not?

14. How else should the protection be lifted? By court order; by another decision maker?

15. If a family has different and competing views about publication, how should this be resolved?

Questions – victim-survivors and families of victim-survivors

16. Would you be comfortable with a close family member making decisions about whether/how to publish your identity and experiences following your death?

17. Are there any circumstances in which you think a family member should not be able to make these decisions? For example, where you had expressed a clear view during your lifetime, and the family member’s decision would go against these wishes.

18. Would you be comfortable going to court to have the protection lifted in relation to a deceased family member?

19. If an alternative decision maker other than a court was able to make a decision to lift the protection, what types of characteristics or expertise would you want them to have? e.g. experience in trauma and grief; media and communications; or legal and judicial.

If the protection ceased on a person’s death, should there be a way for family to extend or reinstate the privacy protection to safeguard victims’ anonymity?

Similar to the questions and considerations posed above if the protection were to continue after death; if the protection ceased, we need to understand your views on whether a family member or another person could extend or reinstate the protection and how they might achieve this.

The VLRC noted that an option would be to apply to the court for a suppression order after a victim’s death. However, suppression orders under the Open Courts Act 2013 can only be made in relation to judicial proceedings. Where someone wants to disclose the identity of a deceased victim before criminal proceedings have commenced, the family would not be able to seek a suppression order to prevent disclosure. Further, suppression orders can only be made on specified grounds, and there is no general ground that would allow an order to be made to avoid undue distress to family members in every case.

Instead, the Act could include a process to extend the protection (if it has not yet ended) or reinstate it (if it has already ended). The same issues would apply to both scenarios.

Who should be able to apply to reinstate or extend the protection?

As noted above, the Act allows anyone with a ‘sufficient interest’ to seek a court order permitting identification of a deceased victim as a victim of a sexual offence. The same term, ‘senior next of kin’ or ‘family member’ could be used to describe someone who applies to extend or reinstate the privacy protection.

Should only a court be able to extend or reinstate the protection?

Court applications can be stressful and retraumatising, and most stakeholders consulted so far agree they should be avoided where possible. There may be other forums or decision-makers that could provide a less-stressful experience.

However, in line with the VLRC recommendation, a court process may be justified here, given that breaching the protection could expose people to criminal penalties. The courts are well placed to balance the competing interests of privacy, freedom of expression and open justice, and to manage complex cases where family members have opposing views about publication. The government and the courts would continue to work to ensure the application process is as simple as possible, and appropriate supports and guidance are available.[footnoteRef:13] [13: The VLRC Contempt Report recommended further support services to assist victim-survivors with exercising their legal entitlements connected with the criminal trial process and other rights, as well as liaising with the media (Recommendations 108 and 130). Dedicated advice lines were set up in September 2020 to provide victim-survivors with legal information about their options. The Women’s Legal Service Victoria and Victoria Legal Aid are supporting victim-survivors and family members to obtain information to help them navigate changes to the law and make informed decisions about speaking of their experience. These dedicated advice lines are operated by lawyers sensitive to the complexities of sexual assault.]

What should be considered when deciding whether to extend or reinstate the protection?

Consistent with the current law,[footnoteRef:14] the Act could require the court to consider: [14: See section 4(1BF) of the Judicial Proceedings Reports Act 1958.]

the deceased victim’s wishes expressed when alive (if any)

the views of family members or other persons close to the deceased

the public interest in publication

and make clear that the court must not consider the views of the offender or alleged offender.

Questions – if the protection ends on or shortly after the victim’s death

20. Should it be possible to extend or reinstate the protection?

21. If so:

(a) who should (and should not) be able to apply to extend or reinstate the protection?

(b) should the application be to a court or another decision-maker?

(c) what factors should (and should not) be considered?

Immunity for past publications about deceased victims

Past online publications that have identified deceased victims in breach of the law would not be prosecuted unless the Director of Public Prosecutions (DPP) determines it is in the public interest to do so. There have been no prosecutions of such cases to date.

The DPP has publicly stated that she has only sought to enforce the publication prohibition when reporting or anticipated reporting has led to distress to victims and their families.[footnoteRef:15] Just because a past publication technically constitutes an offence does not mean that a family member or the media will be prosecuted. [15: The Director of Public Prosecutions’ 28 October 2020 statement is available at https://www.opp.vic.gov.au/News-and-Media/Media-releases/STATEMENT-FROM-THE-DIRECTOR-OF-PUBLIC-PROSECUT-(1).]

Prosecutorial discretion will continue to apply as an important safeguard to ensure that prosecutions are not brought where this would not be in the public interest. Further, as it is a summary offence, prosecution for a breach of the publication prohibition must generally commence within one year of the date of the alleged offence.

The November 2020 reforms provide retrospective immunity from prosecution from 1991 up to commencement (18 November 2020) for any victim-survivor who self-published and for third parties who published with the authorisation of an adult victim-survivor. They do not provide immunity to people who published identifying details about deceased victims.

The new reforms could extend the immunity to:

all past publications about deceased victims, or

some past publications about deceased victims (e.g. by family members).

Questions

22. Should the Act give immunity from prosecution for past publications about deceased victims?

23. If so, should this be:

(a) a broad immunity, or

(b) limited to publications by specific people such as, for example, family members?

Support, assistance and further information

There are a number of support options for people, including counselling and legal support.

Support for victims of crime

Victims of crime may wish to contact the Victims of Crime Helpline on 1800 819 817, 7 days a week from 8 am – 11 pm. The Helpline has skilled victim support officers who provide free information and support to help victims and their family members manage the effects of crime and guide them through the legal process. You can also access relevant information at victimsofcrime.vic.gov.au    

Victorian Centres Against Sexual Assault

Centres Against Sexual Assault (CASA) offer free and confidential short to medium term individual counselling to child and adult victim/survivors of sexual assault, their non offending family members/carers and significant others. They also offer group work, telephone counselling and referrals to other relevant services.

To contact any CASA and the after-hours Sexual Assault Crisis Line (SACL) simply call 1800 806 292 or Email SACL at ahcasa@thewomens.org.au

Free legal advice

Two specialist services have been established to provide free, confidential legal advice for any victim survivor or family member who may hold concerns about telling their story.  

Victoria Legal Aid special advice service phone (03) 9269 0442 Monday to Friday between 9am and 5pm.  

Women’s Legal Service Victoria (WLSV) special advice service phone (03) 8622 0600 (metropolitan callers) or 1800 133 302 (regional callers) Monday to Friday between 9am and 5pm. This special service is staffed by female lawyers from WLSV, who specialise in legal issues arising from violence against women.  

Further information

If you have any questions in the meantime you can email consultation@justice.vic.gov.au and the Department of Justice and Community Safety engagement team will get back to you.

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