Too often, women are denied justice for sexual assault. The Lehrmann judgment marks progress
In the much-anticipated cause celebre defamation case, Justice Michael Lee found that Bruce Lehrmann did rape Brittany Higgins. Finally, vindication for Higgins – and for Lisa Wilkinson and Ten, as they won the Lehrmann case on the defence of truth.
“The federal court has found that I published a true story about a rape at a federal minister’s office at Parliament House in March 2019. I sincerely hope that this judgment gives strength to women around the country,” Wilkinson said on the steps of the court.
I sincerely hope so, too – and it should. It was a win for Higgins and a win for women everywhere.
Defamation cases are being used around the world to silence women and the media from speaking about and reporting on gender-based violence. These cases invariably involve incidents behind closed doors and are her word against his. Too often, women are denied justice in our criminal and civil courts because of male-centric myths about rape and sexual assault.
But Lee’s thorough and trauma-informed decision on Monday bucked that trend: it was a masterclass in the correct approach to fact-finding in defamation cases involving sexual assault. In his 324-page judgment, Lee carefully outlined the evidence – acknowledging and demolishing rape myths along the way, along with what was left of Lehrmann’s credibility.
Lehrmann had argued that Higgins’ “counterintuitive” behaviour after the night in question meant she couldn’t have been a victim of rape: he had bought her coffee, which she accepted, and she had sent him an email asking for his help on a work matter. But Lee was rightly critical of the notion that he
should make an assessment “by reason of some a priori view as to how victims of sexual assault are expected to behave”.
Higgins’ actions could be readily characterised as those of a woman coming to terms with what happened to her, while having to work alongside her perpetrator. Lee clearly understood why women might feel they have to be cordial to a perpetrator they work with.
When it comes down to her word against his, it is all about credibility and Lee found that Lehrmann had none: he had a “tenuous” attachment to the truth, told “deliberate lies”, engaged in “Walter Mitty-like imaginings” about joining Asis and, most seriously of all, he had “defended the criminal charge on a false basis, lied to police” and instructed his lawyers “to cross-examine a complainant of sexual assault, in two legal proceedings, on a knowingly false premise”.
Higgins did not emerge unscathed: she was found to be “an unsatisfactory witness” in some respects, but not in relation to her account of the rape. The judge found her allegation that there was some political cover-up and that she had to choose between her career and seeking justice was contradicted by other evidence.
But the contemporaneous evidence from both Higgins and Lehrmann in the days after the event otherwise supported Higgins’ version of events. Lee said it was significant that she told her “loving father” that she was raped. Lee added, “one wonders why a daughter would say such a thing to a clearly loving father absent a genuine belief a sexual assault had taken place”. Whatever inconsistencies there were in her evidence about the rape, they were “not inconsistent with a genuine victim of sexual assault” and were explained by the effects of trauma and intoxication on memory. This is progress.
Lee found Lehrmann’s account of the night in question to be “risible”: Lehrmann claimed they had returned to the office, after a long night drinking, to work and that he had not had sex with, or even been intimate, with Higgins. This flew in the face of the evidence: Lee found Lehrmann was attracted to Higgins, had bought her drinks, kissed her in the nightclub, invited her back to drink in the office (because he couldn’t take her to the home he shared with his girlfriend) for reasons that “had nothing to do with French submarine contracts”. Lee concluded that Lehrmann was “so intent upon gratification to be indifferent to
Ms Higgins’ consent, and hence went ahead with sexual intercourse without caring whether she consented”.
After years of fierce media debate about the case, which the judge rightly noted had become “a proxy for broader cultural and political conflicts”, we can now all say it: Lehrmann raped Higgins.
This was a finding on civil standard, on the balance of probabilities. The judge could reach his conclusion, despite there being no conviction in a criminal case – which shows that survivors and the media should not shy away from reporting women’s stories if criminal conviction isn’t achieved – for whatever reason. Too often the criminal justice system fails women, as it did Higgins.
Lehrmann’s privilege and entitlement led him to be indifferent to Higgins’
rights – and to bring this “omnishambles” defamation claim, which can only be described as a massive own goal. The consequences for Lehrmann are a stark warning to anyone bringing defamation proceedings to vindicate their reputation in relation to alleged criminal conduct.
The outcome might be a win for Higgins and the media, but at what cost? How many women will be silenced because they saw what Higgins was put through in court and in the media? How many media organisations and journalists are going to report on women’s stories of gender-based violence after seeing the millions in legal costs Wilkinson and Network Ten expended to prove Higgins’ truth?I hope this decision provides some deterrence to defamation claims like this. One in three women have suffered sexual assault – and we have to be able to talk about it if we are ever going to be able to address it. Thanks to Higgins’ courage in speaking out, more women came forward after her and inquiries into parliamentary workplace culture have led to significant reforms. It is in the public interest for women to speak out – and we must protect it.
For this reason, and as I have written before, we must never let another woman go through what Higgins just went through.
Jennifer Robinson is a barrister and co-author of How Many More Women? Exposing how the law silences women
Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 802 9999. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
In Australia, mental health support is available at Beyond Blue on 1300 22 4636 and Lifeline on 13 11 14. In the UK, the charity Mind is available on 0300 123 3393 and Childline on 0800 1111. In the US, Mental Health America is available on 800-273-8255
It is in the public interest for women to speak out – and we must protect it