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New Legislation Could Prevent Sexual Assault Complainants Being Sued For Defamation

This would be huge for reporting.

By Lucy Cocoran
As Australia continues to find ways to improve sexual assault rates and increase reporting, new legislation could offer a major incentive for victim-survivors to come forward.
Under a new proposal being considered nationally, sexual assault and harassment complainants would receive immunity against being sued for defamation for reports to police and authorities. Victoria, who is leading the change, is pushing to extend the existing defamation defence of absolute privilege to include people who make complaints to other bodies, like anti-discrimination commissions and professional disciplinary bodies, offering even greater protection.
The consultation paper, released by the Victorian Government also flagged that the defence would apply even when the speaker deliberately or maliciously made a false or misleading statement" because "research into the prevalence of false, misleading or vexatious publications in a variety of reporting settings has consistently found them to be rare".
The paper went on to argue that "the far more significant issue faced by investigative and enforcement bodies [was] reluctance of victim-survivors to report".
Between 2010 and 2018, rates of sexual assault for Australians aged 15 and over rose by more than 30%, but 87% of cases go unreported.
We know we have a major problem when it comes to incentivising victim-survivors to come forward and report assaults, and, as Bri Lee told ELLE Australia, complainants can expect "an average of a three year delay, horrific cross-examination and absurdly low conviction rates," once they have actually reported. If we're going to improve the process, we need to do it from the start by making it easier and safer for people to speak out.
"Although complainants are rarely sued in defamation over complaints made to police—at least to my knowledge—the perception that complainants could be sued may have a chilling effect on reporting of wrongdoing," Michael Douglas, senior lecturer at the University of Western Australia's Law School told The Sydney Morning Herald.
"This proposal may alter perceptions for the better. If these reforms lead to more reporting of criminal wrongdoing, that is obviously a good thing," he continued.
The consultation paper said 18 out of twenty-seven stakeholders who had made submissions on the proposed change were in favour of it. If approved, the defence would cover reports made to police, statutory investigative agencies, professional disciplinary bodies or employers, but not to media.
Australian defamation laws are state-based so, if approved, the proposed laws would only come into effect at Victoria at this stage. Still, there is hope that other states will follow suit if the proposal is accepted.
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