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Posted: 2024-04-15 09:21:40

In the three years since Brittany Higgins first alleged she had been raped at a ministerial office at Parliament House in Canberra, the collateral damage has been unprecedented.

But Monday's findings in the Federal Court defamation case brought by Bruce Lehrmann against Network Ten and Lisa Wilkinson have finally gleaned some clarity.

Justice Michael Lee found that, on the balance of probabilities, Bruce Lehrmann raped Brittany Higgins.

And after an oral summary that last more than two and a half hours — and a full judgement that spans 324 pages — some key takeaways are beginning to emerge.

Mr Lehrmann's criminal trial collapsed in 2022 with no findings against him, and he has always maintained his innocence.

What do the findings mean for our understanding of consent?

During his hours-long judgment on Monday, Justice Lee made some observations about consent, and some of the perceptions of what it constitutes.

There are slight variations in legislation across Australian jurisdictions about what needs to be proven to determine a sexual assault has occurred.

But Justice Lee said he focused on the "ordinary meaning of the word rape" in determining this case.

A man walks out of glass doors flanked by a lawyer and journalists.

Bruce Lehrmann left the Federal Court after the judgment in his defamation case was handed down.(ABC News: Brendan Esposito)

He told the court he was not satisfied that Ms Higgins had verbally or physically protested while Mr Lehrmann was having sex with her.

But he later said such protestations were unnecessary, because the contemporary understanding of rape had evolved from "historical conceptions … which relied upon notions of force and resistance".

"She did not consent, because she was so drunk on the couch that at some point, she was not aware of her surroundings and then suddenly became aware of Mr Lehrmann being on top of her, at which time he was performing the sexual act, which he then continued to a conclusion," Justice Lee said in his judgment.

Another important feature in this part of the judgment was the question of whether Mr Lehrmann knew Ms Higgins had not consented.

Justice Lee said he believed Mr Lehrmann was "hell-bent on having sex" with Ms Higgins.

He said he found Mr Lehrmann was "so intent on gratification to be indifferent to Ms Higgins's consent", and this was sufficient to prove that sex between the pair was not consensual.

Brittany Higgins was unreliable, but still credible

From the outset, Justice Lee said the case had become a "credit case involving two people who are both, in different ways, unreliable historians".

He said Mr Lehrmann told "deliberate lies" and at one point while drinking on the night in question "spun the tall tale he was waiting on a clearance to come through so that he could go and work at ASIS [the Australian Secret Intelligence Service]".

"All these falsehoods, together with his Walter Mitty-like imaginings, … demonstrate that Mr Lehrmann had no compunction about departing from the truth if he thought it expedient," Justice Lee said.

"To remark that Mr Lehrmann was a poor witness is an exercise in understatement."

But Justice Lee also picked apart aspects of Brittany Higgins's evidence as containing various "untruths" which became more serious over time.

He found Ms Higgins had "selectively curated material on her phone prior to giving it to the AFP" and "sometimes told untruths when it suited her".

"…By 2021 and afterwards, most [untruths] were part of a broader narrative or theme she and her boyfriend wished others to believe," he told the court.

Brittany Higgins in a black jacket.

Justice Lee's judgment said while Brittany Higgins was an unreliable witness, he found her credible in whether she and Mr Lehrmann had sexual intercourse.(AAP: Lukas Coch)

Justice Lee was referencing what he has labelled "the cover up narrative", in which Ms Higgins and her boyfriend David Sharaz "crafted a narrative accusing others of putting up roadblocks and forcing her two years earlier of having to choose between her career and seeking justice by making and pursuing a complaint".

But despite his reservations, he still found Ms Higgins credible when it came to the key question of whether she and Mr Lehrmann did have sex.

"There is the lack of nuance and superficiality of dismissing a witness as always untruthful or unreliable just because aspects — even important aspects — of their evidence fall into that description," he said.

"Her evidence that she was not fully aware of her surroundings but then suddenly became aware of Mr Lehrmann on top of her, at which time he was performing the sexual act, when given orally before me, struck me forcefully as being credible and as having the ring of truth."

Justice Lee also said some of her actions immediately after the night in question may have been tainted by the effects of trauma.

"I do not consider any of this 2019 conduct … is necessarily inconsistent with a victim of sexual assault seeking to process what had occurred; working her way through her feelings, questioning her conduct, considering what she should do, and reflecting upon how people would perceive her if she made a complaint."

Even if Bruce Lehrmann won, he wouldn't have 'won' much

If Justice Lee had found in favour of Bruce Lehrmann, he would have been entitled to damages.

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