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Constraints on sexual offence complainants Anna High

By: High, Anna.
Material type: materialTypeLabelArticleSeries: New Zealand Law Journal.Publisher: New Zealand Law Society, 2022Subject(s): ATTITUDES | CRIMINAL JUSTICE | EVIDENCE | LAW REFORM | PRIVACY | SEXUAL VIOLENCE | VICTIMS OF SEXUAL VIOLENCE | VICTIM/SURVIVORS' VOICES | NEW ZEALANDOnline resources: Read related article on Canadian law, The Conversation, 27/4/2021 In: New Zealand Law Journal, 2022(5): 144-5, 177Summary: Anonymity laws, designed to protect victims of sexual violence by automatically suppressing their identity, may also serve to unduly constrain those who want to publicly identify as survivors. This effect has been decried by some survivor advocates as a perverse “victim’s gag” and has been subject to increased scrutiny in recent years. In Australia, the “Let Her Speak” and “Let Us Speak” campaigns in the jurisdictions of Victoria, Tasmania, and the Northern Territory were launched in 2018 and have resulted in significant reforms to complainant anonymity laws. The issue has more recently been in the spotlight in Canada, where last year news broke that an Ontario survivor had been fined $2,600 for inadvertently violating a ban on publishing her own identity (Lisa Taylor “Canada must Change the Law that Bans Sexual Assault Survivors from Revealing their Own Identities” (27 April 2021) in The Conversation. Sexual violence offences are recognised by our criminal justice system as unique in nature. Debates on sexual violence complainant name suppression have frequently focused on the tension between complainant privacy, as a protective measure justified by that unique nature, and the principle of open justice. In this article, my focus is on another tension — between complainant privacy, as a protective measure, and complainant autonomy and agency. Specifically, I suggest that the vision of Te Aorerekura, Aotearoa’s National Strategy to Eliminate Family and Sexual Violence (New Zealand Government, December 2021), demands a rethinking of the legal constraints placed on sexual offence complainants. Such a rethink is required by the Strategy’s understanding of sexual offending as a disempowering transgression against mana, and the related guiding principles of mana motuhake, autonomy, and agency. (From the introduction). Record #8118
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New Zealand Law Journal, 2022 (5): 144-5, 177

Anonymity laws, designed to protect victims of sexual violence by automatically suppressing their identity, may also serve to unduly constrain those who want to publicly identify as survivors. This effect has been decried by some survivor advocates as a perverse “victim’s gag” and has been subject to increased scrutiny in recent years. In Australia, the “Let Her Speak” and “Let Us Speak” campaigns in the jurisdictions of Victoria, Tasmania, and the Northern Territory were launched in 2018 and have resulted in significant reforms to complainant anonymity laws. The issue has more recently been in the spotlight in Canada, where last year news broke that an Ontario survivor had been fined $2,600 for inadvertently violating a ban on publishing her own identity (Lisa Taylor “Canada must Change the Law that Bans Sexual Assault Survivors from Revealing their Own Identities” (27 April 2021) in The Conversation.

Sexual violence offences are recognised by our criminal justice system as unique in nature. Debates on sexual violence complainant name suppression have frequently focused on the tension between complainant privacy, as a protective measure justified by that unique nature, and the principle of open justice. In this article, my focus is on another tension — between complainant privacy, as a protective measure, and complainant autonomy and agency. Specifically, I suggest that the vision of Te Aorerekura, Aotearoa’s National Strategy to Eliminate Family and Sexual Violence (New Zealand Government, December 2021), demands a rethinking of the legal constraints placed on sexual offence complainants. Such a rethink is required by the Strategy’s understanding of sexual offending as a disempowering transgression against mana, and the related guiding principles of mana motuhake, autonomy, and agency. (From the introduction). Record #8118