Lehrmann's lawyers contort themselves in effort to discredit Higgins

In closing submissions, lawyers representing Bruce Lehrmann in his defamation suit against Network Ten have presented a tangled web of inconsistent scenarios including that Brittany Higgins was not drunk at all, drunk but not so drunk that she couldn't consent to sex and also, drunk enough to strip naked and pass out on her boss' couch. Dr Jennifer Wilson reports.

* CONTENT WARNING: This article discusses rape

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

ONE OF THE MANY points of dispute in the process of determining the veracity of Brittany Higgins’ allegations of rape made against Bruce Lehrmann has been her claim that she was “ten out of ten drunk” when entering Parliament House in the early hours of the morning of Saturday 23 March 2019, when the crime allegedly took place.

It’s therefore unsurprising that Lehrmann’s lawyers, Steven Whybrow SC and Matthew Richardson SC, devoted some 16 paragraphs of their closing submissions in Lehrmann’s defamation action against Channel Ten and Lisa Wilkinson attempting to establish that Higgins was not as drunk as she claimed. CCTV footage of her walking through security, they argue, ‘contradicts any suggestion that Ms Higgins was so intoxicated she was incapable of consenting to sex’.

The submissions state:

‘111. It is fundamental to Ms Higgins’ narrative that she was “ten out of ten” drunk, and as drunk as has [sic] she's ever been in her life, seeking to describe circumstances where she had no capacity to make any decisions of her own and in particular, to consent to sex.’

Court drama and flair on show in Lehrmann defamation case

To the uninitiated, the world of court rules and decorum, on show in the Lehrmann versus Network Ten matter, is foreign and confounding, writes Rosemary Sorensen.

It does come as something of a surprise, then, to read later in the closing submissions, at paragraph 374, that counsel considers Higgins’ account of her level of inebriation is in fact ‘strong evidence to find that Ms Higgins was trying to hide the fact that she had passed out drunk in Senator Reynolds’ office...’ [IA emphasis]:

‘374. The events as described in D and E above all provide strong evidence to find that Ms Higgins was trying to hide the fact that she had passed out drunk in Senator Reynolds’ office and that is why she began to construct a narrative that eventually lead [sic] her down a path she had to continue to walk.’

In other words, Ms Higgins was not so drunk as to be incapable of consenting to sex, but she was so drunk she passed out on her boss’ couch.

A reasonable person might consider that being “passed out drunk” on your boss’ couch in her Parliament House office suggests a level of inebriation that would make consenting to sex impossible.

Lehrmann’s lawyers concede that Higgins was drunk enough to pass out. According to their narrative, she then concocted an elaborate rape conspiracy in an effort to conceal the fact that she had passed out. However, they don’t consider that the level of inebriation required to pass out on her boss’ couch would impair her ability to consent to sex.

Throughout his criminal trial, Bruce Lehrmann maintained that no sexual activity took place that night. Indeed, he claims that after passing through security, he went one way and Higgins went another and he did not see her again before he left, alone.

Lehrmann's lawyers circle in on alleged victim

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

According to the submissions:

‘12. He maintained that upon entering the office he turned left and did not see Ms Higgins again. He rejected every suggestion that there was any sexual activity with Ms Higgins at all.’

However, his lawyers appear to be anticipating the possibility that Justice Michael Lee might find that sexual intercourse took place. In this event, they must convince Justice Lee either that Higgins was capable of consent because she wasn’t impaired by alcohol, despite passing out drunk on the couch, or that Lehrmann did not know she couldn’t consent, despite her passing out drunk on the couch.

The submissions state:

‘515. Suppose the Court makes the maximal findings which could in theory be made, short of upholding the justification defence — that intercourse probably happened in Senator Reynolds’ suite and that Ms Higgins was not capable of consenting to it because of her state of intoxication, but that Mr Lehrmann did not have knowledge of her inability to consent.’

As Ms Higgins has testified that she woke up with Lehrmann on top of her, a reasonable person might wonder how it could have escaped his notice that she was passed out when he allegedly commenced sexual activity.

These are things that women go through: The Lehrmann trial

Bruce Lehrmann's defamation case against Network Ten has seen the alleged victim, Brittany Higgins, again subjected to relentless cross-examination and accusations.

Higgins told the court:

“My head was in the back corner of the couch. He was on top of me, his arms were over the top of the couch. He was having sex with me at that point in time and that was what I first woke up to.”

Counsel for defendant Lisa Wilkinson, Sue Chrysanthou SC, together with Ten’s Matt Collins KC, argued that should Justice Lee find sexual intercourse did indeed take place, Bruce Lehrmann has ‘perverted the course of justice’ with his flat denial. This would also amount to “wicked conduct of the highest magnitude”.

According to Hannah Wootton in the Australian Financial Review:

But Mr Lerhmann has consistently denied intercourse occurred, and Ms Chrysanthou said that if the court made such a finding, then he would have perverted the course of justice.

Mr Collins added in his written final submission that this would amount to “wicked conduct of the highest magnitude” by Mr Lerhmann, as it would mean that he brought the case about on a “false factual foundation”.

What Whybrow’s closing submission rather ironically spotlights is how impossibly difficult it is for women to find justice in the matter of rape and sexual assault. With Ms Higgins’ level of sobriety being centred, we can clearly see how the alleged victim’s state is manipulated to adapt to all possibilities.

That is, it’s claimed that she wasn’t too drunk to consent, but she was so drunk she passed out.

You can’t have it both ways.

Or can you?

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: