By Karl Hoerr -
In delivering his ruling in the Bruce Lehrmann defamation case in the Federal Court, Justice Michael Lee was at pains to point out that his finding that Lehrmann did rape Brittany Higgins at Parliament House in 2019, was on the balance of probabilities.
This has raised obvious comparisons with the more onerous criminal test of proof beyond reasonable doubt. Lehrmann did face a criminal trial in the ACT Supreme Court, but the prosecution was discontinued. He has always maintained his innocence.
Kate Eastman SC is a barrister specialising in employment discrimination and sexual harassment, with more than 30 years’ experience in dispute resolution and advocacy. She says the civil standard of proof does not place the onus on one party to prove all the elements of an allegation. But she adds it is not as simple as comparing two accounts, side by side. “It’s to look at the credibility of the people giving their accounts. The reliability of people’s memories about what occurred, are they good historians?” she says.
In his defamation ruling, Justice Lee said, “To remark that Mr Lehrmann was a poor witness is an exercise in understatement… [H]is attachment to the truth was a tenuous one, informed not by faithfulness to his affirmation but by fashioning his responses in what he perceived to be his forensic interests.”
Justice Lee said Higgins was also an unsatisfactory witness but notwithstanding his reservations, her evidence about the rape, “struck me forcefully as being credible and as having the ring of truth.”
This was a defamation proceeding brought by Bruce Lehrmann but given the test applied, it does raise the question of civil options available to complainants. Complaints can be made to the Australian Human Rights Commission under the Sex Discrimination Act or to the NSW Anti-Discrimination Board.
But Eastman says there are still huge barriers. “[T]he woman bears the onus of having to tell her story, often over and over again, and that story to be challenged,” she says. In NSW, under the Anti-Discrimination Act, a cap of $100,000 applies to damages. Federally, there are no caps on damages through the Human Rights Commission or the Fair Work Commission.
“We’ve had a culture where women bear the shame of what somebody who, they haven’t asked to engage in inappropriate sexual conduct or any physical violence to them, but they carry the shame of being the victims of those incidents,” says Eastman.
Eastman believes parts of the Lehrmann judgment are noteworthy. “[I] thought some aspects of the judge’s observations about the impact on victims of sexual violence, the impact of trauma on somebody’s memory, together with the sort of stereotypes or tropes or assumptions that are made about women in their response to sexual violence, I thought that has been very interesting,” she says.
“I think for many people practising in these areas, that’s been a good thing to actually read, may I say, a judge who looks like an old, white, male, conservative judge, to actually say this, that’s a good thing. He is not the first person to have said this,” Eastman clarifies. “But I think the nature of this case has really allowed us to have that conversation about the assessments we make, not knowing the full detail or understanding trauma.”
