Law Analysis

Lehrmann's lawyers circle in on alleged victim

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(Image by Dan Jensen)

In questioning Brittany Higgins, Bruce Lehrmann's legal team has failed to acknowledge the trauma experienced by women following a sexual assault. Dr Jennifer Wilson reports.

* CONTENT WARNING: This article discusses rape 

*Also listen to the audio version of this article on Spotify HERE.

WE AREN’T USED to watching rape trials in real time or indeed at all unless we have some involvement. Of course, the Lehrmann v Ten trial currently underway in the Federal Court is a defamation trial, though we could be forgiven for experiencing some confusion around that definition.

The alleged rapist, Bruce Lehrmann, is suing Channel Ten and former host of The Project, Lisa Wilkinson, for defamation, following an interview conducted with Lehrmann’s alleged victim, Brittany Higgins. In the interview with Wilkinson, aired by Ten, Higgins described the sexual assault allegedly perpetrated by Lehrmann on her in the Parliament House office of former Defence Minister Linda Reynolds.

Lehrmann was not named or identified in any way in the interview.

Lehrmann claims the interview destroyed his life. Ten and Wilkinson have opted for a truth defence.

This defence requires that the alleged defamer:

‘...must prove that the defamatory imputation carried by the material published is substantially true.’

In other words, Ten and Ms Wilkinson must prove that the interview in which Ms Higgins alleged she was raped in Parliament House is substantially true, despite Lehrmann not being named by them on air as the alleged perpetrator.

This has, inevitably, led to intense cross-examination of Ms Higgins by Lehrmann’s counsel, Steven Whybrow. Whybrow has taken us through the usual interrogation strategy endured by victims of sexual assault in our adversarial legal system. This strategy depends on thoroughly discrediting the alleged victim to make her – and therefore her allegations – unbelievable enough for a judge or jury to conclude that no verdict of guilt can be arrived at.

It is a gruelling and ghastly performance of the administration of justice that we are required to observe. Mr Whybrow’s intense and focused deconstruction of Ms Higgins’ inconsistencies of memory and, in a couple of instances, admitted lies – to which he returned unrelentingly over a period of two days – was deeply uncomfortable to watch.

This was both because of concern for Ms Higgins and an infuriated exasperation with Mr Whybrow, whose insistent and repetitive questioning seemed, from the point of view of someone who suffers from trauma as a survivor of sexual abuse, a hostile and nitpicking exercise.

Memory, as Ms Higgins observed more than once, does not work how counsel and the law prefer it to work and that is especially the case in the recall of traumatic events and their aftermath.

The most disturbing message conveyed during the first few days of the trial was that a victim of sexual assault is held to stratospherically high standards of clear and consistent recollection — an expectation entirely at odds with the nature of all memory and, in particular, traumatic memory.

Mr Whybrow’s focus on the dress Ms Higgins wore on the night she was allegedly raped by Lehrmann was especially distressing. Women have long been held responsible for ensuring that what we wear is not sexually provocative. Taken to its extreme, some men insist we wear burkhas to save them the torment of glimpsing female flesh.

However, Mr Whybrow’s focus was not on the provocative nature of Ms Higgins' dress but on the implications of her wearing it again on another social occasion after the alleged assault.

Said Whybrow:

“I want to suggest to you that you took those photos and sent them because you hadn’t been sexually assaulted in that dress.”

Apparently, wearing the same clothes in which we are raped on another occasion can be seen as evidence that we weren’t raped. Because how could any woman bear to wear again the clothes in which she was sexually assaulted?

It’s reasonable to assume that there are rape victims who do wear the same clothes because, as Ms Higgins stated, they wish to “reclaim” those garments from the associated trauma. 

As well, some women may burn, destroy or simply throw away the clothes.

Some victims may keep their clothes as evidence.

The point is women have many and varied reactions to the trauma of rape and seizing on any of them as proof of anything is nothing more than an attempt at a legal “gotcha”.

Unfortunately, in its determination to find a man not guilty of rape, the law relies heavily on such gotcha moments with which to invalidate the veracity of a victim. Entrapping her is the objective. Because a woman who lies, or who does not clearly recall a sequence of events, or who speaks to her alleged attacker after the event could not possibly have been sexually assaulted in the first place.

Such are the myths upon which a defence strategy is built.

Mr Whybrow cannot be reasonably blamed for his strategy, however disturbing it is to viewers and how much it further traumatises a victim. He has to operate within the requirements of the law. In the defamation trial, he must do his very best to undermine the truth defence, just as he did when he acted for Lehrmann in his criminal rape trial that collapsed after a juror disobeyed the judge’s instructions, leaving Lehrmann in a limbo in which the allegations against him remain unresolved.

Bruce Lehrmann faces another prospective trial for sexual assault brought by another alleged victim In Toowoomba. It remains to be seen if this trial will be abandoned because of juror misconduct, the leaking of police briefs, or any other set of circumstances that might work in Mr Lehrmann’s favour.

In the meantime, the defamation trial continues, with more to come from Ms Higgins and 25 more witnesses on behalf of Channel Ten and Ms Wilkinson for Mr Whybrow to cross-examine.  

If you would like to speak to someone about sexual violence, please call the 1800 Respect hotline on 1800 737 732 or chat online.

*This article is also available on audio here:

Dr Jennifer Wilson is an IA columnist, a psychotherapist and an academic. You can follow Jennifer on Twitter @NoPlaceForSheep.

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