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The trial of Bruce Lehrmann for the alleged rape of Brittany Higgins has been a gift to critics of the #MeToo movement.
It is a bitter irony, or perhaps bitterly apt, that the trial was aborted last year after a juror brought into the deliberation room an academic paper about the incidence of false complaints of rape. The paper had not been presented in evidence, and jurors are bound to decide their verdict only on evidence led in court.
Bruce Lehrmann and Brittany Higgins.Credit: Alex Ellinghausen/Rhett Wyman
The discovery of the unauthorised material meant the presiding judge, Justice Lucy McCallum, was forced to declare a mistrial.
One imagines there was a lively debate among the jurors about whether Higgins had made up her claim, and how common it was for women to do so. Even within the sanctum of the jury room, it seems the case was a totem for the broader debate around sexual assault.
This juror went outside the specifics of the case to ponder something more systemic: do women in general lie about being assaulted, and are men at risk of wrongful conviction? The jurors should have been looking at the individual facts of the case; instead they were arguing something broader.
But it’s no real surprise because this matter, which continues to metastasise into ever-more horrible forms, has never just been about the individuals involved, and that’s why it has always been so controversial, and why the surrounding commentary is so laden with bile.
Walter Sofronoff, KC, during the inquiry into the handling of the Lehrmann case.
It has become a lightning rod for those who want desperately to deny the bare truths which underpinned the #MeToo movement: that sexual assault and harassment is endemic in our society, that it is under-reported and under-prosecuted and that, when it is prosecuted, the experience of complainants in the justice system can be brutal. Those facts are all incontrovertible, in contrast to the facts of the Lehrmann trial, which were highly controversial and continue to be so.
These controversial facts make it easy for bad-faith actors to argue them, and then extrapolate them out into a cri de coeur against the supposed motto of the #MeToo movement: believe all women.
The trial itself collapsed under the weight of misconceptions about sexual assault. Statistics show false complaints of sexual assault are incredibly rare – a 2016 meta-analysis of seven studies of rape allegations in four Western countries put confirmed false police reports at 5 per cent.
Then, in the aftermath of the trial, it became clear that behind the scenes there had been an extraordinary level of conflict between Crown prosecutor Shane Drumgold and the investigating police. Many of the police either did not believe Higgins’ story, or thought it had too many inconsistencies, and they made it known to Drumgold, and to Higgins herself, that they didn’t think her claim merited prosecution.
Former ACT Director of Public Prosecutions Shane Drumgold has resigned his position and lost his ACT barrister’s practising certificate.Credit: Rhett Wyman
Drumgold felt so passionately that it did, particularly in light of the woeful record of the ACT in bringing sexual assault complaints to trial, that he lost his objectivity and behaved unethically.
Once these tensions exploded into public view, the ACT government called an inquiry into the investigation and prosecution, led by former Queensland Supreme Court judge Walter Sofronoff.
Sofronoff’s report, released this week, was so highly critical of Drumgold’s conduct that the prosecutor’s career is now over – he has resigned his position and lost his ACT barrister’s practising certificate. No one else was criticised in the report, which has been (irrevocably, in my view) compromised by Sofronoff’s inexplicable decision to leak it to favoured journalists.
Two things have been overlooked in the coverage of the fallout from that leak, and the ensuing angry response from Drumgold (he denied he acted in an underhanded way, and pointed out that the inquiry missed an opportunity to examine systemic issues about sexual assault and the criminal justice process).
Illustration by Reg LynchCredit:
The first is that Sofronoff found it was appropriate to bring the matter to trial. The second is his finding that trust had broken down between the police and the complainant, as investigators “came to doubt the truth of Ms Higgins’ allegation”; and that this police distrust was likely “perceived by her and affected her confidence in the integrity of the criminal justice process and … her attitude and conduct towards the investigators”.
It is hard to understand why Sofronoff noted this undermining of the complainant, and her demoralisation at the hands of investigators, without criticising the police for it.
That’s even while sympathising with police for what was clearly a difficult and frustrating investigation process. No investigator wants their complainant talking to the media, or speaking publicly about the matter at all.
Higgins herself made a statement this week alleging the investigating police were “absolutely awful to me” and “made me feel violated at every turn”.
That sense of violation has presumably been worsened as the entire contents of Higgins’ phone was illegally leaked and published, following the aborted trial.
As I’ve written before, the abuse of Higgins’ privacy sends a chilling message to other would-be complainants.
Lehrmann, who has always vehemently denied the allegation, has given a second exclusive interview to Channel Seven, due to air on Sunday night. He is in the midst of several defamation suits against media outlets who published Higgins’ claims. The whole horror show will continue to run, and the actors will exercise their legal rights, and their right to tell their stories.
Quite separately from the Lehrmann and Higgins debacle, it is important to remember that on a systemic and statistical level, we do not have a major problem with men being falsely imprisoned for sexual assault. We have a major problem with sexual assault.
A 2020 report by the Australian Institute of Criminology quotes Australian Bureau of Statistics figures which suggest one in five Australian women have suffered sexual violence, but only 13 per cent of them will make a police report. Sexual assault has a far lower prosecution rate than almost any other crime. In 2021, only 20 per cent of sexual assault police reports made it to NSW courts. A lack of evidence or the withdrawal of the complainant are major reasons for this high attrition rate.
When it comes to the Lehrmann trial, people will make up their own minds. People already have. But those facts about sexual assault in our society are not up for grabs. They’re real, and they won’t change until the system does.
Jacqueline Maley is a columnist.
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