Court gives victims of family violence a $12,500 reason to stay silent.

Trigger warning: This post deals with family and intimate partner violence, and may be triggering for some readers.

Imagine that you are a victim of family violence, someone who has been living in fear and isolation, possibly for years.

So far you have kept your pain a secret, but finally you reach out to others on Facebook for help and understanding – only to find that, because you named your attacker online, you’re being sued for ruining his reputation.

Imagine that, after years of suffering in silence, with your children under constant threat, you finally find it within yourself to tell your family and friends about the nightmare you’ve been living – and the result of that brave decision is having to pay tens of thousands of dollars.

To your abuser. With interest.

A recent court case has made these scenarios a real possibility, with very concerning ramifications for the survivors of family and intimate partner violence.

Last week, a Western Australian court ordered a woman to pay $12,500 in damages to her estranged husband after finding she had defamed him on Facebook by telling people that he had abused her.

In December 2012 Robyn Greeuew wrote that she had separated from her husband “after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe.”

Robyn’s post about her husband remained on her page for six weeks.

In that time, the post was seen by a woman who her husband had been dating. This woman logged on to Facebook after a date, to “see what his ex-wife looked like”. She went to Robyn’s Facebook page and when she saw the post, she felt “shocked, horrified, confused and upset”, according to the evidence in the trial.

The post was removed in February 2013. The husband sued his wife for defamation, seeking damages for the pain and suffering her post had caused him.

Robyn did not have a lawyer – she represented herself at the trial.

In court, she denied writing the entire Facebook post, saying that it had been doctored and that she knew little about Facebook. But she went on to defend the central allegation in the post, saying that she had been subject to domestic violence and abuse during their 18 year marriage.

To prove her case, she presented a letter written by her husband in which he apologised for an incident that occurred in 2010 while they had been on holidays together.

In the letter, the husband said he was sorry for his ‘freak out’ and ‘spoiling the holiday’. The letter went on: “I don’t deal with my panic attacks well…the panic and freak out period I had re holidays just showed that”.

Ultimately, the judge found neither Robyn nor her husband were particularly credible witnesses – and he was not satisfied that, on the evidence presented, Robyn’s allegations were true.

But the judge did find that the post caused the husband ‘personal distress, humiliation and hurt and harm to his reputation”. The judge said the Facebook post caused “people to ‘look at [the husband] twice’ and be more reserved about their contact with him”.

The judge awarded $12,500 in damages (plus interest at 6%) to the husband “as reparation for the harm done to his personal and business reputation and for vindication to his reputation”.

The truth of what happened in this the case is not particularly relevant here. The violence may have taken place or it may not. We will never know what happened within that marriage.

But, in many ways, that is exactly the point.

Intimate partner and family violence, by their nature, tend to leave very little physical evidence. Women cannot always prove in the usual way that they’ve been subject to violence, especially when that violence has been psychological, financial or otherwise kept out of sight. Stalking or rape within marriage are also notorious for leaving only one witness: the victim.

That is why so many offenders continue to get away with it – because to the outside observer, everything looks fine. There are no witnesses. There is no “proof”.

But the most concerning aspect of this case is its potential to stop women coming forward and talking about violence, sharing their experience, seeking support, and yes, warning other women.

There are so many reasons why women are forced to keep silent about abuse: fear of reprisal, protecting their children, financial reasons, fear of not being believed, isolation.

What survivors of family violence don’t need is another reason to keep their experience of violence to themselves.

The threat of legal action for defamation is just that.

The current law of defamation is not set up to accommodate family violence – indeed, very few legal structures are. If women are going to be sued for alleging family violence, then we need the legal rules to take into account everything we know about the nature of violence against women.

We need the law to take into account that, where evidence cannot be presented in the usual way (witnesses, photos and other exhibits), it doesn’t mean that the allegations are not true. You can’t put an exhibit tag on fear.

We need the law to take into account that if an abuse survivor changes their story, it doesn’t make them unreliable or prove that they are lying. They might be scared. And they probably have been scared for a very long time.

We need the law to reflect that, where women talk or write about their experience with domestic violence, their primary aim is not necessarily damaging the reputation of their abuser. They may be seeking help and support for themselves, or to support others by telling their story.

And even women actively want to let people know about the true nature of their abuser, they need a defence or an acknowledgement that there is a benefit to others (and to themselves and their children) in this information being shared.

These are not easy things. But neither is dealing with family violence.

At the moment, there are so many reasons why women don’t talk about their experiences. Number one is that they’re terrified. Terrified of their attacker. Terrified for their children. Terrified of not being believed or being belittled and being dismissed. Terrified of other people blaming them for the violence. Terrified of being left homeless. Terrified of the judgement of others, of people saying: why didn’t you leave? Don’t you love your children? Why didn’t you stand up for yourself?

This fear reaches out beyond the end of a violent relationship, especially when there are legal proceedings relating to children. This fear can last a lifetime.

Now women may more to fear. A threat of litigation if they share their experience. A legal system that says: don’t speak out about your abuser because you may have to prove it all in court. Stay silent, or, literally, pay the consequences.

The courts should a place where victims receive justice – not another place where the abuse can continue and women are forced into silence.

If you or someone you know are affected by domestic violence, you can call 1800RESPECT (1800 737 732) 24 hours, 7 days a week, or click here. If you, a child or anyone else is in immediate danger, call 000 immediately.