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Story you’re not allowed to read

JANE Doe* wants to speak.

Groomed and molested as a 15-year-old high school student by her then 58-year-old 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But an outdated law which only exists in Tasmania and the Northern Territory won't allow sexual assault survivors to be identified under their real name, even with their full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 teacher to just two years and six months imprisonment for "approximately 20-30" instances of sexual assault 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 sexual assaults 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.

A law designed to protect victims is having the opposite effect by preventing Jane Doe from owning her story. Picture: iStock
A law designed to protect victims is having the opposite effect by preventing Jane Doe from owning her story. Picture: iStock

"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 Tasmanian law, Jane Doe is unable to speak - at least not under her own name.

The law, known as Section 194K of the Tasmanian Evidence 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."

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 maintaining a sexual relationship with a minor 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."

NOT JUST AN IDLE THREAT

The laws which currently prevent Jane Doe 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 owners of the publication were 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, a similar law exists, and 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 Evidence Act.

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

The law designed to protect victims has added to survivors’ stress. Picture: iStock
The law designed to protect victims has added to survivors’ stress. Picture: iStock

"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."

#LETHERSPEAK: SEXUAL ASSAULT SURVIVORS JOIN CAMPAIGN

In solidarity with Jane Doe, today, 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.

RELATED: 'You deserve to be heard': Tara Moss speaks out

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

Sharna Bremner who is the founder of End Rape On Campus Australia says that in the era of #MeToo, it is "unfathomable" that the courts would gag victims and prevent them from having the right to discuss their own assaults.

 

Tara Moss shows her support for the Let Her Speak campaign.
Tara Moss shows her support for the Let Her Speak campaign.

 

"No one can deny the tremendous power of the #MeToo movement and of seeing women speaking out, unashamed in order to defy the stigma surrounding sexual assault" says Ms Bremner.

"If we prohibit survivors from speaking out, we aren't just shutting down and silencing those individuals, we are doing a disservice to the survivor community more generally by denying them role models and figures they can draw strength from.

"Survivors cannot be what they cannot see. When survivors in the community have strong public role models, like Bri Lee and Saxon Mullins, it empowers them to speak out, seek support, and ultimately report their abuse without shame or stigma."

Karen Willis, the Executive Officer of Rape and Domestic Violence Services Australia agrees that victims who wish to speak out should be able to.

"If a victim wants to walk out of court at the end of a trial and stand on the steps and give a press conference, that's nobody's business but their own" she said.

"Having strong voices in the media encourages others to come forward. The law, as it stands, benefits the offenders, not the victims."

Our Watch CEO, Patty Kinnersly says that it is vital that sexual assault survivor voices are heard in the media and that "reporting can be unbalanced and misinformed" if it systematically excludes these voices.

"Police and courts are important sources, but they are not the only sources. Survivor voices help fill the gaps that laws, courts and legal proceedings cannot," she says.

"Voices of survivors provide a human face to statistics and legal proceedings. They can help communities understand the lived experience of violence."

Jannika Jacky says being able to share her rape experience helped her heal.
Jannika Jacky says being able to share her rape experience helped her heal.

The Tasmanian Attorney-General, Elise Archer, has responded saying that 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)."

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 #Let Her Speak."

Nina Funnell is a Walkley Award winning journalist and anti sexual assault advocate and a director of End Rape On Campus Australia.

To support the campaign, sign and share the petition here.

Topics:  editors picks sexual assault tasmania