She wanted to tell you about her sex assault. The court won’t let her

The first time she learned it would be illegal for her to speak publicly about being sexually assaulted was when the driving instructor who groped her when she was 18 pleaded guilty last week in Milton.

The woman, now 26, had spent hours writing her victim impact statement and intended to share it on social media.

I wanted my words to be public. I wanted my words to help make change," she said in an interview.

Instead, those words remain still in draft and all the power behind them unseen," she said, because of a publication ban on her identity that she never asked for and was never told about, and which she has not yet been able to lift despite asking the Crown and a judge.

It's so hard to explain the anger that comes along with this from being muzzled," she said.

Under a legal provision intended to encourage victims to report sexual offences without fear of shame or stigma, sexual assault complainants are allowed to have a publication ban on their identities. The publication ban is not automatic, but it must be imposed if requested by the Crown or the complainant.

Because of the publication ban in her case, neither the woman, nor the Star, nor anyone else, can publicly identify her without potentially facing consequences for breaking the law.

In a recent case - described by legal experts as absurd and deeply harmful to sexual assault survivors - a woman who was sexually assaulted by her ex-husband in Waterloo was fined $2,600, for violating a publication ban on her own identity after she emailed the court decision to a close group of supporters. (The decision is now under appeal, with her lawyer arguing that the woman unintentionally breached the ban and that the decision had not been widely shared.)

If the woman had been asked if she wanted the publication ban ordered she would have said no, she said. She had even urged Halton Regional Police to include her name in the press release after Zia Shah, 63, was charged, because she thought it might encourage other victims to come forward if they could see they were not alone.

For eight years I lived in silence about what happened to me," she said.

And now she is being kept silent by a publication ban intended to protect her from harm.

It is difficult to describe how painful that is, and how alienating it feels to be buried by more legal process just to be able to speak," she said.

The silencing effect of a publication ban can be immense," said Jane Doe, a sexual assault survivor who has spent decades advocating for justice reform that might render such publication bans unneeded.

This strikes fear and danger for women who are sexually assaulted, who might be considering reporting," said Doe, who points to the backlash women still face when reporting sexual violence for why she has never lifted the publication ban on her identity and uses a pseudonym to speak publicly.

In her research, Doe found the law - which says that the identity of the person shall not be published in any document or broadcast or transmitted in any way" - is confusing and often poorly understood by judges, lawyers, anti-violence advocates and media.

Little information is available to sexual assault survivors who want to know what they are legally allowed to share about their case, particularly when it involves social media - how most teens and young women communicate, said Farrah Khan, manager of Ryerson University's office of sexual violence support and education.

They are not given the information they need to make informed decisions," she said.

There is also little information available about how to lift a publication ban - a process which, if the Crown doesn't assist, may require a sexual assault victim to pay for a lawyer to file a court application, something Doe called outrageous."

Emma Carver, counsel for the Toronto Star, said the Crown should facilitate lifting of the publication ban as soon as the victim requests it.

Several recent cases confirm judges have jurisdiction to remove a ban when a victim no longer desires protection, Carver said. There should be a simple process to facilitate this. Victims should not bear the burden of navigating the legal system on their own. It is not helpful to tell an unrepresented victim that they can bring an application,' given the complexity of our court system," she said.

One way to make the process easier could be for such publication ban orders to include a term making clear that a victim may consent to the lifting of the publication ban by communicating their consent in writing to the Crown.

Either parliament or the courts should also make clear that a victim who discusses the case or its outcome with their friends, family and support network are not in violation of the publication ban," she added.

A spokesperson for the Ministry of the Attorney General said complainants typically obtain information about publication bans through the victim/witness assistance program staff or the Crown while criminal proceedings are ongoing.

The issue of revoking the publication ban can be revisited at any stage in the proceedings," said spokesperson Brian Gray. After the criminal case is over, the complainant needs to file court application to lift the ban, Gray said.

In the 26-year-old woman's case, she said she learned about the publication ban case when Ontario court judge Jane Kerrigan Brownridge briefly noted it at the start of the plea last week.

My face on the call was like, What? I'm so confused,'" she said.

According to court records, Shah, the driving instructor, pleaded guilty to the lesser included offence of assault and was granted a conditional discharge.

Over a court break, the woman tried to find out what exactly the publication ban meant, and if it could be lifted in court immediately.

Instead, she said she was told by her victim/witness assistance program worker that the Crown Amy Stevenson - who was not the original prosecutor assigned to the case - wasn't sure how to lift the publication ban, nor what the Crown policy was.

At the end of the hearing - when the Crown didn't bring the issue up - the woman said she addressed the judge herself to request that the publication ban be lifted. But, she said, the judge said she could not deal with the issue because the case had ended.

After court, she tried to get more information from victim services about what she can and cannot say due to the publication ban and how to get it lifted, but got little useful information other than that she could meet with a Crown in a few weeks to talk about it.

She was also told - wrongly - that the ban is imposed automatically.

More than a week later, she still does not know if she has to file her own application with the court and how to do that, if the Crown would assist her or if she has to hire a lawyer, or how long any of it might take.

She started doing her own research and felt sick when she discovered the Waterloo case.

Her job as a public servant requires security clearance and being charged with breaching a court order could have put her job in jeopardy.

The idea that because someone made this decision for me and then was negligent enough to or just careless enough to think I shouldn't be informed or didn't have a say, could make me lose my job is infuriating," she said.

She was also unclear if she had already violated the publication ban by informing her boss why she needed time off, speaking to the people who came to court to support her, or even contacting a reporter.

She said the court system needs to change, to ensure that every person who reports a sex assault is informed about their choice to have a publication ban imposed on their identity and given instructions on how to get the publication ban lifted later if they choose to do so.

It's heartbreaking to find out there is an order barring your ability to speak and share your story... especially in crimes like this, there is so much power in being able to essentially reclaim the narrative about your life and what happened to you," she said.

When someone unilaterally makes a decision to take that choice and that ability away, it just compounds the pain you already feel by being victimized. You feel re-victimized by the system."

Alyshah Hasham is a Toronto-based reporter covering crime and court for the Star. Follow her on Twitter: @alysanmati