Ramesh Thakur

4 May 2024

9:00 AM


On 15 April, Justice Michael Lee brought down the curtain on Lehrmann’s suit against Network Ten and Lisa Wilkinson. His statement explaining the salient points of the judgment was a masterclass of judicial reasoning and judicious conclusions, sifting evidence-based facts from allegations and suppositions, drawing logical inferences and not holding back on calling out falsehoods and mendacity. Nevertheless, there are four troubling aspects of the verdict. But first, a caveat. Lee likely applied the law as enacted by parliament regardless of his individual views on these matters and his knowledge of the law is obviously superior to my non-existent qualifications.

Lee described the saga as an omnishambles. Most of the main players come out with badly soiled reputations. However, former minister Linda Reynolds emerges with her reputation restored and her chief of staff Fiona Brown is the one true hero of the sordid tale for her integrity and compassion-tinged decision making. All others engaged in falsehoods, half-truths, evasiveness, convenient lapses of memory and electronic records inadvertently scrubbed, etc. This makes it less than satisfactory that the main weight of the verdict falls solely on Lehrmann. How can justice be seen to have been done? Rather, it’s more of a social justice outcome.

Second, the civil standard used to convict Lehrmann of rape was that of the ‘balance of probabilities’. Lee explained his reasoning cogently yet succinctly. Lehrmann clearly had the hots for Higgins and plied her with drinks as a time-tested technique of loosening inhibitions. With no previous evidence of being a workaholic, and a girlfriend awaiting him at home, he took her to the minister’s suite back at Parliament House with the intention of consummating his lust. Hence his refusal to answer calls from his girlfriend and hurry to get back to her after completing his business without first ensuring Higgins’ safety and welfare.

So far, so good. The problem is: why is the same ‘balance of probabilities’ standard not applicable to Higgins’ conduct? She was an adult in a responsible position. There’s no suggestion of a date rape drug. Rather, she imbibed generously but not wisely and engaged enthusiastically in amorous foreplay (passionate kissing and sexualised touching) of her own will. She did not demur at going back to the minister’s suite. Perhaps she had a sudden drink-fuelled urge to admire the paintings in the room? His intentions were so clearly telegraphed that she could have chosen to wait in the Uber while he collected whatever papers he needed. Instead she can be seen skipping willingly behind him. If we put all this together, along with the still persisting social expectation for the male to take the lead in such courtship rituals, is it unreasonable to infer consent on the balance of probabilities?

Third, looking at the totality of the evidence, Lehrmann’s actions reveal, at best, a dubious and sleazy character. One, moreover, who is not quite the brightest bulb in the intellectual firmament.

One of the most quotable sentences from the judgment is that having escaped from the lion’s den in the criminal trial, in launching his defamation suit under the lower civil standard of proof he chose to return for his hat. Granting that and putting it aside because stupidity in itself is not a crime, under contemporary norms the social stigma and legal consequences of being charged with and convicted of rape are at least as bad as, if not worse than, being the victim of rape. No stigma should attach in the latter case at all, even though in some minds it might. Consequently, there should be an equally stringent bar for conviction. In this particular case there was no physical evidence of sexual intercourse, none at all. From the reasonable conclusion that Lehrmann wanted sex (as did Higgins, perhaps?), the more questionable inference is drawn that her state of undress and foetal position when discovered by a cleaner demonstrate that sex did take place. With respect, that seems too thin a reed on which to hang a man.

There’s a double standard at play, where the woman is effectively infantilised and denied responsible agency. Being too intoxicated is an acceptable excuse to transfer the burden of proof and responsibility entirely to the male defendant for whom being drunk is no excuse. He must bear the responsibility both for his own choices even if intoxicated and for her choices even if too inebriated to make active choices. Heads she wins and tails he loses, when the objective evidence indicates two young and immature people, both seemingly keen on each other and returning to a site where they could consummate their fantasies.

Related to this, the law simply dismisses the reality that some women too can act unwisely, succumb to temptation in the heat of the moment and change their stories subsequently either because they regret their ethical lapse, or because they fear the consequences for their marriage/relationship (recall the case of Chinese actor Gao Yunxiang who was acquitted of rape by a Sydney jury in 2020); and some are outright malicious (Google the Tom Molomby and Eleanor Williams cases last year), manipulative (see the case of boxer Harry Garside last year) and use sex consciously as a weapon. In a long, thoughtful and painfully honest recent essay in Quillette, Larissa Phillips recounts her violent rape in Florence in 2001 and recovery from the trauma. She writes that women too can make reckless decisions regarding their personal safety. Responsible decisions by rape victims would include reporting the crime to the police and requesting a medical examination. Higgins wiped her phone record and created a media storm before filing a police complaint. We are trapped in an age where those who demand the scales be tilted even more towards women complainants are valourised, but anyone who dares to urge a more equitable balance of responsibilities is vilified.

Fourth, Judge Lee adjudged Lehrmann to be guilty of rape ‘simply by being recklessly indifferent to whether or not there was consent’. The Wilkinson episode was broadcast by Ten before the rape trial had even begun. Neither she nor the Ten network was in any position to judge the merits of the allegation prior to its being tested in court. They could not have known the truth at the time of the broadcast. Therefore the broadcast was entirely reckless in its imputation that rape had occurred and that Lehrmann was the clearly identifiable perpetrator. The legal, social and mental health damage of this charge was bound to be enormous on the young man concerned. How exactly does a subsequent finding of truth retrospectively validate the decisions and actions of Wilkinson and Ten? Or, to put it in the same language used to condemn Lehrmann for eternity, why should Wilkinson and Ten escape a matching judgment of indifferent recklessness?

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