This is an edited extract from the updated and unredacted How Many More Women? Exposing how the law silences women by Jennifer Robinson and Dr Keina Yoshida (Allen & Unwin) out now.
And then we have the Lehrmann judgment: a win for journalists reporting on stories about gender-based violence, and a cautionary tale for men who might sue. As Justice Lee put it, ‘[h]aving escaped the lions’ den, Lehrmann made the mistake of going back for his hat.’
The difference between the civil ‘balance of probabilities’ standard in defamation cases and the criminal ‘beyond reasonable doubt’ standard, Lee emphasised, can be ‘decisive in dealing with the same underlying allegation.’ Lehrmann walked away without a criminal conviction, but because he sued and lost, he will now forever be known as a rapist, and a liar.
Too often the criminal justice system fails women, as it failed Brittany and Nina. But this does not mean that you won’t win in a defamation case.
Justice Lee’s trauma-informed judgment was a masterclass on the correct approach to the truth defence. He accepted—without needing expert evidence—the adverse impacts of trauma as well as intoxication on the memories of survivors of sexual assault. He noted that, in sexual assault criminal trials, intoxication is often used to suggest consent based on ‘loss of inhibition’, or to challenge the credibility of the complainant and the reliability of their account.
But Lehrmann had claimed there was no intimacy or sex at all. On his account, he had returned to Parliament House with Brittany, after a long night of drinking, simply to complete some work. The judge found this to be ‘stuff and nonsense’, and ‘an elaborate fancy’. Looking at the evidence on the whole—including the fact Lehrmann was sexually attracted to Brittany, that he had encouraged her to drink ‘well beyond the bounds of sobriety’, that they had been intimate in the night club, and that he knew she was ‘seriously inebriated’ and ‘had reduced inhibitions’—Justice Lee concluded that he had taken her back to their office, a ‘secluded place’, to have sex. Once he found that sex took place, intoxication was relevant to the question of whether Brittany was so affected by alcohol to be incapable of consent. Justice Lee found that she was not conscious of what was happening and did not consent, and that Lehrmann ‘was hell-bent on having sex’ with Brittany and ‘did not care one way or another whether [she] understood or agreed to what was going on’. In fact, Lehrmann ‘was so indifferent’ to Brittany’s rights ‘as to ignore the requirement of consent’. On this basis, he found that Lehrmann raped Brittany.
When it comes down to her word against his, it is all about credibility, and Justice 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 the intelligence service, 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’.
Brittany did not emerge unscathed in the judge’s credibility assessment: she was found to be ‘an unsatisfactory witness’ in some respects, but not in relation to her account of the rape. (The judge found that her allegation of a political cover-up, and claim that she had to choose between her career and seeking justice, were contradicted by other evidence—even if she had honestly felt these things to be true). He said Brittany’s account of the rape had ‘the ring of truth’ and was supported by contemporaneous reports and records of what both she and Lehrmann had said to others about the incident at the time.
It is a reminder to all about the importance of contemporaneous records, which Justice Lee emphasised are a ‘far surer guide as to what happened than ex post facto accounts or rationalisations’. Whatever inconsistencies there were in Brittany’s evidence about the rape, they were ‘not inconsistent with a genuine victim of sexual assault’ and could be explained by the effects of trauma and intoxication on memory. For these reasons, the judge preferred her evidence to his. This is progress.