For many survivors of sexual assault, justice through the courts can be a long and painful process. Public naming and shaming may seem a better path to justice, but many people are unaware of the legal risks of posting.

On Sunday October 18, a young woman in Wellington began posting allegations of sexual assault and violence about a group of musicians on her Instagram story. She named them and tagged their accounts.

Soon she had shared dozens and dozens of stories, and the allegations kept rolling in. She later posted she had received upwards of 60 messages from women, men and teenagers as young as 14 detailing their experiences with the musicians.

The allegations range from rape to drugging to physical violence. Many were assaults carried out on people who were asleep. All of the stories were submitted anonymously, with the name and identifying information of the victim blurred out.

The posts were shared widely on social media, including by high-profile New Zealand musicians.

On Tuesday, police confirmed a team of 12 detectives are investigating mutiple allegations of sexual assault relating to a group of Wellington musicians.

Police detective John van den Heuvel asked the public to stop posting on social media, because it “could incorrectly and unfairly target the wrong people and impact the police investigation.”

“I would encourage no further postings,” he said.

As of late Tuesday, the woman who originally posted the stories has deleted them. But now thousands of people across the country know the names of the accused. A fashion label has removed modelling images of one of the men from their site, and a club where they had previously performed posted that they’ll never be allowed in again.

For many survivors of sexual assault, justice through the courts can be a long and painful process. For every 100 cases of sexual violence reported to police in New Zealand, only six result in jail terms. 

Many of the Instagram submitters mentioned they hadn’t gone to the police about their assault - some of them said it was the first time they had told anyone.

For some victims of sexual violence, public naming and shaming may seem a better path to justice than through the courts. But many seem unaware of the legal risks of posting. Is a trial by social media a fair path to justice, and what are the legal ramifications, both for those who post and the accused?

Why someone might come forward on social media, when they’ve never gone to the police

When Brittany Cosgrove read the Instagram stories this week, they felt eerily close to home.

When she was 14, she was drunk at a house party. She was sexually assaulted by a group of older boys. “This is not something that's new, this happens all the time. I just think this is the first time there's been a social media buzz about it, and a real fight for justice.”

She didn’t go to the police, and says many survivors don’t feel comfortable reporting to police either.

Brittany Cosgrove (left), along with her sister Johanna (right) run Nopesisters Clothing, a social enterprise which fundraises for social issues including for sexual assault survivors. Photo: supplied.

“Look at the media, look at all these people who have gone to police and nothing has happened, or perpetrators who get off because of their promising sports career. When you see things like that in the media, why would anybody come forward?”

A Ministry of Justice report from last year found that for every 100 cases of sexual violence reported to police, only 31 resulted in a perpetrator being charged. Of that, 11 were convicted, and of that only six were given a prison sentence. 

“I looked at the evidence and I was like, I’m not gonna get anything out of this,” says Britt.

When you're a victim of sexual assault, she says, there’s a lot of self-loathing and self-hatred. “You're like, ‘oh god, what if this is my fault, I shouldn’t have gone out, I shouldn’t have gotten drunk’.”

The idea of sitting down with officials to talk about a traumatic experience and having them potentially not believe you, or make you feel like you’re to blame, is a massive fear. “Especially as a young teenager, can you imagine trying to do that?”

There’s a perception, Britt says, that if someone hasn’t reported their assault to police, then they must be making it up.

She’s concerned these attitudes might come out about the Wellington case, given many of the stories appeared to have surfaced for the first time on social media.

“I’ve had that happen so many times. I've told people what happened to me, and they're like ‘Where’s the police report? Must not be true’.”

RespectEd ceo Fiona McNamara. Photo: supplied.

“It’s a really long and full-on process to go through,” says Fiona McNamara, the chief executive officer at RespectEd, an organisation that educates about sexual harm.

“For survivors it can involve having to tell their stories over and over again, and it can be re-traumatising. Often they will want to move on and not go through something like that.”

Is trial by social media a new form of justice?

The Wellington case shows it can be seen as “more effective” to come forward on social media than through the court system, Britt says.

“To be able to anonymously post online and have effective forms of punishment - they lose their jobs, they lose their platform, no one wants to hire them anymore, no one wants to be associated with them. That's real life consequences for their actions that happen instantly. Instead of a court process where no one knows about it.”

Tamatha Paul is a 23-year-old Wellington City Councillor. On Tuesday, along with sexual violence advocate Louise Nicholas, she organised a meeting between police and a small group of survivors to advise them on what a court process might look like. 

She’s urging people to come forward to the police if they feel comfortable. “I could see risk in it being all over social media,” she says.

But she acknowledges there is a form of justice in naming online. 

“It’s the attitudes and perceptions around these people [the perpetrators] that allows them to continue doing this behaviour. So I think actually shaming that, and also putting out the warning to people who are doing similar activity that it’s not acceptable, is really important.”

“Particularly when it is public figures, you want people to be aware of these people and not support them or their work.”

The perception police won’t believe stories of sexual assault and that a court process will be re-traumatising is a “really real fear to have”, says Tamatha. 

She acknowledges it’s difficult to both encourage people to report to police, while knowing that for many sexual assault surviviors a police report won’t bring justice. But, she says, a police report “is probably the best way that we can get justice, if we’re able to document what has happened.”

“The most important message is please do report to 105 if you feel comfortable, but if you don't, please do access those support services.”

Britt’s never named her perpetrators online, because after the assault her parents talked her through the legal risks. But she does post occasionally about her experiences and journey as a survivor. 

“I'm scared, I'm scared of the people still. So I completely understand all of these people who are coming forward anonymously. It’s scary and you're scared of what these people will do to you physically or legally.”

She acknowledges there are risks to online naming and shaming. “It’s a very two-sided coin, it can be very dangerous and fucked up, but you can also get a lot of good things out of it. I’ve seen a lot of trials by social media, people being cancelled because of promoting a makeup brand, it’s stupid. But then you see something like this come out of it and it’s effective.”

But unlike the courts, social media does not afford the right to a fair trial. If it turns out the people involved are innocent, or even the wrong person has been named or tagged, it could be devastating for those accused.

It can also have serious legal consequences for the people doing the posting.

The legal risks of naming and shaming on social media

“If people aren't careful, something you say could prevent a person being charged,” says Professor Ursula Cheer, the dean of law at the University of Canterbury.

There are two main risks, Professor Cheer says. First, it can make it harder for police to gather evidence. “It can cause witnesses to change their story or hide things,” she says.

For example, a person who has been accused could choose to delete any incriminating evidence on their phone before police get to it.

“If the police can't get enough evidence, they won't have enough to lay charges.”

Secondly, when legal proceedings in a matter are about to happen, that case becomes sub judice (literally ‘under a judge’ in Latin). This means media can’t publish material that creates a real risk of prejudice to a fair trial. Sharing that information is called contempt of court. 

Contempt of court is a criminal charge,  which carries a maximum fine of $25,000 or up to six months in prison.

When information that relates to a prosecution is made public it can affect a trial. Defence lawyers can argue that the trial is unfair, and can ask for the case to be thrown out. “It’s not that common, but it has happened,” says Professor Cheer.

“The view that making people take this information down is protecting rapists is incorrect. It's completely the opposite, this law is there to make sure people get a fair trial and the justice system works.” 

“The alternative is that no trial happens and no one is convicted.”

Can somebody sue you for what you said about them online?

In New Zealand you can be taken to court for defamation. Defamation isn’t just any bad thing you say about anyone - the legal definition is something that has been said or published publicly about someone, that negatively affects their reputation. 

Not everything that negatively affects someone’s reputation is defamation though. If you can prove that it’s true, or that it’s your honestly held opinion, the accusation of defamation will fail. 

If you are found to have defamed someone, the court can order several outcomes. An order called an injunction can be made for the statement to be taken down, or for it to not be repeated.

But the main remedy is financial compensation, which can be ordered for the harm you caused to someone’s reputation. These can extend to  “punitive awards”, which are financial payments to punish the defendant, or a requirement that the losing party pays the winning party’s court costs. 

Losing a defamation case can be very expensive - for example, this year former politician Steven Joyce sued the National Business Review for a negative column it published about him. The Court ruled the paper needed to pay him $269,000 for his legal costs. The ruling was overturned this month, but the case demonstrates that it’s a costly business.

Chris Patterson is a defamation lawyer based in Auckland. He says while it’s possible, it’s very unusual for an individual person to take another individual person to court for defamation. “Anecdotally, I’d say no more than 30 claims would be brought between individuals a year.”

That’s mostly because “it takes a long time, and is eye-wateringly expensive if it goes to trial.”

Defamation lawyer Chris Patterson. Photo: supplied

At the low end, it could potentially cost someone $15,000 to $40,000 in legal fees to take someone to court for defamation. At the high end, “litigation can run for many years, at a cost of hundreds if not millions of dollars.” For example, Chris charges $600 an hour.

That’s why most claims come against businesses or news organisations. “When you're funding litigation [taking someone to court for defaming you], there are two critical questions that an individual has to ask themselves - is my claim going to be successful, and does the defendant have any ability to pay?”

News organisations, Chris says, “generally tick that second box.” 

Because most individual people wouldn’t have the ability to pay defamation damages, it’s rare for one individual to take another individual to court.

But if you were taken to court for defamation, there are three main defences.

The main one is truth - if what you said about them is true, it can’t be defamation. But, says Chris, it’s up to you to prove it’s true.

“Even though the statement might be true, if they can’t prove it, they're going to be found liable. We don't have a situation where the prosecution [the person who says you’ve defamed them] has to prove that it’s untrue.”

The next defence to defamation is honest opinion, which as Chris puts it, is where “what I said might not be factually true, but I honestly held that opinion based on certain facts that were true.”

The last ones are qualified privilege, where a defamatory statement was made to a limited group of people who have an interest in being advised of the statement, and absolute privilege, where things that are said in court or parliament are not allowed to be called defamatory. 

And what if many other people are making similar claims about the same person? “Just because more people say that it's true doesn't mean that it's true,” says Chris. “But it is an interesting area around damages [the financial payment required]. The defendant could say, ‘But there are 59 other people who've been saying the same thing, I shouldn't have to take responsibility for what they’re saying.’”

Chris says the cost is why most online matters aren't taken as defamation claims, but are dealt to under the Harmful Digital Communications Act. This is a law passed in 2015 that covers online communication that’s offensive, threatening, incites suicide or involves image-based sexual abuse.

Cases are first dealt to by Netsafe, an independent organisation appointed by the government. If Netsafe can’t resolve an issue, then it can be referred to court, where if you’re found to have breached the Act you could be sentenced to up to two years’ prison or a $50,000 fine.

Also, in case you’re wondering why news organisations use the term “alleged” - you legally can’t call someone a rapist until they have been found guilty of rape by a court. We can only report that they have had an allegation of rape made against them, hence “alleged rapists” or “alleged sexual assaults”.

Are we having a social shift in how we believe survivors?

Britt says the MeToo movement, with its public online calling out of sexual offenders, has had a massive impact. 

Young people who were in high school when MeToo began may now be entering the world as 18 or 19 year olds “who know what consent is, and they're able to differentiate and know when something is an assault.”

“For my experience,” Britt says, “that was clearly an assault. But even the people who were at the party with me were like, ‘Oh that's just cos Britt’s a slut’.”

“But now if you went to a party and you saw your passed-out drunk friend being dragged into a room by three guys, and had pictures taken of her doing stuff she was too unconscious to consent to, you’d be like, that’s a rape, that’s an assault.”

The power and threat of community 

Fiona says many survivors don’t come forward because they don’t want an accusation to isolate them from their community.

“People don't know how others are going to react, whether they might be excluded from their community.”

Britt says this is what happened to her. “At one of my jobs I was basically called a lying slut and bullied out of my job, so what does that say? I had real tangible real life consequences for being open about it.”

But when the community is in support of the survivors, says Fiona, “then some of those concerns may not be so real.”

“One thing that social media is really good for is building a sense of community, and I think that might be where people are finding their strength,” she says.

“When you have multiple people coming forward, the public is more likely to believe them.”

Many people choose to finally speak up when they realise doing so could stop an offender from hurting others. “Often the motivation for going to the police is wanting it to not happen to someone else,” says Fiona. “In this case it’s clear that it’s been happening to multiple people, and they think ‘we need to do something to stop it happening to anyone else’.”

For Britt, online communities can either be “really dangerous or really empowering”. “To see other people come forward about their experience, and to see people be like ‘I believe you’, has so much power in it, especially after having so many people not believe.”

What can be done to make reporting to police feel like a safer option?

Fiona has seen things change in the time she’s worked in the sexual violence sector, but says unfortunately it’s happening slowly.

“I think things are changing in the police, I know the police really do want to encourage people to come forward. There are still problems in the system and there's a lot of work that needs to be done.”

A bill was introduced to parliament last year with the aim of reducing the re-traumatisation victims may experience during the court process.

The Sexual Violence Legislation Bill would tighten the rules around bringing up an alleged victim’s sexual history, allow evidence and cross-examination to be delivered by video rather than in-person, give extra support to witnesses, reduce the number of times alleged victims need to repeat their story, and enable judges to stop unfair or inappropriate questioning.

The bill got partway through the process of becoming law before it was stalled by New Zealand First in July this year. 

Fiona hopes the new government will continue the bill’s progress. “We really strongly support that bill. It’s not going to fix every problem in the justice system but it will make things better.”

For now, she supports the police’s request for survivors to come forward. “I think going to police is a good thing, if that's something that they feel they can do. But ultimately survivors need to choose what's right for them.”

Most importantly, everyone affected by sexual violence should seek support. “It can be really exhausting when your community is dealing with issues like this,” she says. Both those directly harmed by sexual violence and those supporting them are welcome at sexual violence support services.

“Everybody that has come forward is really brave,” says Britt. “I know how hard it is and they deserve all the support in the world. And I fully understand people that don’t want to come forward, people that do want to stay anonymous.”

“There are people out there that believe you, there’s a community out there that believe you.”

SEXUAL ABUSE HELPLINES

24 hour nationwide helpline Safe2Talk: 0800 044 334

24/7 helpline Wellington Sexual Abuse HELP: 04 801 6655

RapeCrisis directory to services across the country: www.rapecrisisnz.org.nz

(Not for crisis support): For education programs around preventing sexual violence: RespectEd

Male Survivors of Sexual Abuse Aotearoa: www.malesurvivor.nz 

To report your experience to the police, call 111 or the non-emergency line 105

If you have experiences you would like to share relating to this story, you can email the author anna@renews.co.nz.