Alongside the media furore surrounding Bruce Lehrmann’s defamation trial, many stereotypes about victim-survivors have reared their ugly head. Although Justice Lee’s judgment has been iconised, this approach sweeps continuing issues under the rug and does not protect victim-survivors from the maelstrom of very public cases.
In the wake of a failed criminal trial, Lehrmann’s defamation proceedings seemed to represent a final source of hope for achieving something resembling justice. Yet, a great barrier to justice lies in the fact that in civil trials the standard of proof is lower. In criminal trials, the judge and jury must be convinced of the truth “beyond a reasonable doubt,” whereas in a civil trial, the standard is “on the balance of probabilities.” Although the lower standard of proof appears positive for victim-survivors, this often is used as a reason to discredit victim-survivors and suggest that the judgment cannot convey criminal guilt.
However, this is not necessarily the case. Media law expert Peter Bartlett notes that defamation trials are notoriously pro-plaintiff as they proceed on the basis that the defamatory statements are false, which then places the burden on the defendant to prove the truth of the statements. This ultimately means that once the plaintiff has done the work satisfying the simpler elements (that it was published by a third party, it identified them, and it was defamatory), the far more difficult task of proving the truth of what was said falls to the defendant, albeit to a lower standard than would be expected in a criminal trial.
Dr Sarah Ailwood, a professor of law at the University of Wollongong, argues that this imbalanced burden exposes the inherently unequal nature of defamation. She describes the threat of being sued for defamation as a “perennial spoken and unspoken threat that hangs over women seeking to publicise their experiences of violence,” calling for a reformation of defamation law that levels the playing field for women, media outlets, and journalists calling attention to sexual violence.
The nature of the truth defence also means that any person or event at the centre of defamation proceedings must have their entire body of evidence, and every traumatic detail, relitigated and scrutinised afresh before a new court. Despite Brittany Higgins not being a party to these proceedings, it was her actions, her credibility, and her reputation that were once again on the line as she was dragged back onto the witness stand and forced once again to recount the details of her sexual assault.
Turning to the judgment itself, Justice Lee did an effective job of balancing the overwhelming media interest with his pursuit of the truth. In her statement in response to the judgment, Brittany Higgins shared that she did not agree with all of Justice Lee’s findings, but thanked the judge for his “trauma-informed approach.” Exemplifying this was the agreed set of facts set out by Justice Lee, which recognised, amongst other things, “trauma has a severe impact on memory by splintering and fragmenting memories” and “inconsistency is often observed in reliable reports of sexual assault and is not ipso facto a measure of deception.” The acknowledgment of how trauma impacts memory was crucial in a case where untruths and inconsistencies by the various parties were a hot-button issue. Justice Lee was also careful to distinguish Lehrmann’s chaotic and inconsistent lies from Higgins’, acknowledging not only that Higgins’ memory was impacted by the events, but that any misrepresentations she did make were usually to make herself look better in the eyes of the police.
This could be construed as “victim-blaming” if not read carefully. For example, Justice Lee characterises her as an “unsatisfactory witness” based on her inconsistent recollection. Other pieces of rhetoric, such as initially painting the pair as “two relatively young and immature staffers” need to be read with a keen eye to escape misconstruction.
Yet, whilst the judgment cannot be ignored as a sign of progress that potentially signals a new era for how survivors of sexual assault are treated by the courts, the words of a particular judge do not constitute the kind of institutional change necessary to make it easier for survivors to come forward. Whilst somewhat vindicated in the courts, Brittany Higgins will likely never escape the often cruel and relentless media storm that has followed her for the past five years. Some are still calling for her to be referred to ICAC over the compensation payment she received from the Commonwealth in 2022, meanwhile, Bruce Lehrmann is currently in the process of appealing the recent judgment which only continues the media barrage.
The judge’s phrasing was also so significantly lauded by the media, to the extent that a woman’s assault and consequential trauma were lost and trivialised. The popularised quote, “Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat”, cleverly summarises the trope of powerful, guilty men pursuing defamation cases — but the media incorrectly sensationalises it as an indictment of Lehrmann as a rapist. Some media headlines reduce the judgment to a comedy set, with one Daily Telegraph article summarising the trial as, “Top zingers from Lehrmann defamation judge”.
The levity with which the media responded to Justice Lee’s rhetoric sometimes escaped serious condemnation and discussion. With complications in using Justice Lee’s reasoning in criminal trials to protect other victim-survivors, and the media storm itself distorting the judgment, it is clear justice has not yet been created in the courtroom.
