Justice Michael Lee’s decision on the Lehrmann v Network Ten defamation trial has been hailed by consent advocates for aligning with the “changing cultural standards” toward affirmative consent.
Yesterday, Justice Lee told the Federal Court of Australia that, on the balance of probabilities, former Liberal staffer Bruce Lehrmann raped Brittany Higgins in March 2019.
Angelique Wan, CEO and co-founder of Consent Labs, is one of several consent advocates who have praised Justice Lee’s trauma-informed judgment.
In his judgment, which was read out before the court for two and a half hours, Justice Lee found that sexual intercourse did occur between Lehrmann and Higgins; however, Higgins was “passive” and therefore could not actively consent to sex because of her high level of intoxication.
The Federal Court judge also found that Lehrmann was “hell bent” on having sex with Higgins and was “indifferent” to whether she consented to sex or not.
“I thought the way that Justice Lee set it out was really fantastic,” Wan told Women’s Agenda.
“I think it really speaks to the changing tide and our changing cultural standards around consent… We’ve seen changes across jurisdictions in Australia, but I think even more than that is cultural standards, like what we expect of each other as a society, and I think the sentiment is definitely moving towards affirmative consent.”
Sarah Ailwood is a feminist legal researcher and the managing editor of the Australian Feminist Law Journal. In a post on LinkedIn, she shared her thoughts on Justice Lee’s findings.
“Justice Lee has delivered a deeply trauma-informed judgment in which his Honour has actively resisted and challenged the evaluation of the credibility of Ms Higgins as a victim-witness of sexual violence through the lens of rape myths,” she wrote.
Chanel Contos, who runs the consent advocacy organisation Teach Us Consent, also published her thoughts in a social media post yesterday, calling Justice Lee’s findings “relatively nuanced”.
“The outcome is not the criminal justice Higgins initially sought, but it is a relatively nuanced judicial recognition of sexual assault in an extremely public case,” the statement reads.
“This is still a win, albeit a small one.”
A trauma-informed judgment
Speaking with Women’s Agenda this morning, feminist legal researcher Sarah Ailwood explained how Justice Lee’s findings in the defamation trial were trauma-informed, and what that means.
“There are really two ways in which Justice Lee adopted a trauma-informed approach,” Ailwood said.
“The first was he discussed at length the impact of trauma, including sexual assault on memory, on how memory is processed.
“Often people who experience trauma process memory of that event over time, and they will recall different things at different times. That can sometimes lead to their accounts of what happened being inconsistent, incomplete or vague… and that is often used to attack victim-survivors of sexual violence by the legal system because they are accused of being an unreliable witness.”
Ailwood said Justice Lee approached Higgins’ testimony, which went under intense scrutiny from Lehrmann’s legal team, “through a lens of someone who had experienced a sexual assault”.
“That’s quite a significant finding, because it meant that he started from the perspective that Ms Higgins was believable, rather than starting from the perspective that he was looking to doubt her, and that is a really significant difference,” she said.
The second way Ailwood said Justice Lee took a trauma-informed approach was his rejection of Lehrmann’s lawyers’ attempts to discredit her testimony, specifically around the fact that she was drunk and couldn’t remember, she did not report the assault straight away, and other facts.
“Lee looked at Ms Higgins’ conduct after the assault… and basically said it was entirely within the realm of a broad perspective of human experience… there was nothing about her behaviour that was inconsistent with being a sexual assault victim,” Ailwood said.
What happens next?
Angelique Wan is the CEO and co-founder of Consent Labs, a youth-led organisation delivering preventative education on sexual violence.
“Young people deserve to live in a world where respectful relationships are the norm, not where sexual violence is the norm,” Wan said. “And that’s our current state of play in Australia at the moment.”
Consent advocates are hoping the judgment will result in greater change for how the national conversation around consent is shaped. However, there is still a long way to go.
Bettina Arndt, who publicly denounces feminism and describes herself as a “leading voice advocating for men”, is running a conference called Restoring the Presumption of Innocence. The event calls out the so-called “fake rape crisis”, “shameful kangaroo courts” and a justice system that she says “favours ‘victims’”.
Bruce Lehrmann was set to be one of the speakers at the conference.*
Wan said the claims Arndt makes through her event and an organisation she helped establish, Mothers of Sons, are at “complete odds” with the decades of research that show “sexual violence does exist”.
“I was immediately concerned for the continued perpetuation of really harmful myths and stereotypes that exist around sexual violence,” Wan said, upon hearing about Arndt’s conference.
“(It is) making light of the rape crisis that we have in Australia, and downplaying its severity and the fact that there are victim-survivors in Australia and it is quite prevalent.”
Two in five women (39 per cent) in Australia have experienced violence since the age of 15, according to statistics from Our Watch. Perpetrators of violence against women are most commonly men, and are more likely to be known by the victim (35 per cent) than a stranger (11 per cent).
First Nations women face disproportionately higher rates of violence than their non-Indigenous counterparts. Aboriginal and Torres Strait Islander women are 31 times more likely to be hospitalised as a result of domestic and family violence.
The National Student Safety Survey (NSSS) also identifies the high prevalence of sexual violence on university campuses across Australia. According to the latest of the two NSSS in 2021, one in six students have experienced sexual harassment since starting their tertiary education, and one in 20 have experienced sexual assault.
“The NSSS is reflective of the problem that we see in broader society, which is that sexual violence does exist,” Wan said.
Wan urges Australians to consider the “decades of research” highlighting the high rates of sexual violence against men, women and people of all ages.
“I hope that people continue to lean into and embrace that changing understanding of what consent looks, sounds and feels like,” Wan said, “and that fact that it’s the responsibility of all parties to be giving and gaining consent.”
*This piece was updated on Tuesday April 16 at 1:15 pm. Bruce Lehrmann will no longer be speaking at Bettina Arndt’s conference.