Brittany Higgins became a household name in February 2021 when she publicly alleged that, in March 2019, Bruce Lehrmann had sexually assaulted her in the offices of the then Defence Industry Minister Linda Reynolds. Given the pre-existing momentum of the #MeToo movement, the gravity of the alleged crime, and the place where it was alleged to have occurred – the so-called ‘seat of democracy’ – the intense media coverage that followed was unsurprising.

What was extraordinary, from my perspective as a researcher of sexual assault trials for the past 20-plus years, is what followed when Lehrmann’s trial began in the ACT Supreme Court in October. Every moment of the trial, including the complainant’s cross-examination, received extensive media coverage, producing stories in news outlets across the country and internationally.

Former parliamentary staffer Brittany Higgins went public with her allegation in February 2021.Credit:Dominic Lorrimer

This was unusual because one of the features of rape law and trial practice reforms for more than 40 years is that almost all sexual offence trials are held “in camera” – legalese for a closed court – and non-publication orders are made regarding the identity of the complainant backed by a criminal offence. Because Higgins had chosen to dispense with the anonymity to which sexual assault trial complainants are entitled, the media and their audiences were given a rare window into the happenings of a trial.

When ACT DPP Shane Drumgold announced that Lehrmann – who always denied the allegations and pleaded not guilty – would not face a second trial after the jury at the first trial was discharged without reaching a verdict, he said Higgins had “faced a level of personal attack not seen in over 20 years”. This may well be true in relation to comments made outside the trial – in news media and social media.

However, my own reflection on the first trial was that much of the personal attacks that Higgins faced inside the trial was, sadly, not unusual at all. Rather, the case afforded many people their first insight into the extreme pressure and scrutiny to which complainants are routinely subjected in the thousands of rape and other sexual offence trials conducted in Australian courts every year.

At the heart of sexual offence trials is a system of cross-examination by defence lawyers which intensely and systematically focuses on challenging the complainant and their account. In legal terms, the endeavour is to throw into question the complainant’s credibility and reliability. In more vernacular language the mission is to portray them as a liar. No matter how the statute books have been re-written – and they have been – this core feature of sexual assault trials has barely changed.

ACT DPP Shane Drumgold announced the re-trial of Bruce Lehrmann will not go ahead.Credit:Rhett Wyman

Some defence lawyers contend there is nothing remarkable or problematic here – it is what occurs in all trials. Perhaps, but allegations of lying and fabrication take on particular significance in sexual assault because so many “rape myths” are implicated in the suggestion that “she is lying”. I have read thousands of pages of trial transcripts from sexual offence trials and, time and again, I’ve seen the deployment of “classic” cross-examination tactics which are underpinned by deeply problematic assumptions about what a “real” rape looks like, and how a “genuine” rape victim would act.

It is routine that every single utterance from the complainant about the alleged crime, as well as events after and before – whether to a friend, a work colleague, an ambulance officer, a doctor, a police officer or during the trial – is forensically examined for “inconsistency”. Why? Because the ability to offer an entirely consistent account of what occurred is still regarded as a hallmark of authenticity. This is so, despite the availability of jury directions (underpinned by what we now know about trauma, memory and recall) that expressly reject such a contention. This is how a complainant’s different accounts of how much time elapsed before she again wore the clothes she was wearing on the night of the alleged rape can, bizarrely, become a central issue in the trial.

Decades after legislatures began to try to write the practice out of trials, it is still routine for the defence to suggest that the complainant did not act in the way they “should” have done after the alleged sexual assault – as if there is a “right” way.

If at all possible, the defence will attempt to convince the jury that the complainant fabricated the rape allegation by evoking a motive to lie. I have encountered numerous such claims over the years. Many of them are so spurious or implausible that it almost beggars belief that they are advanced as reasons why a person would put themselves though the ordeal of a rape complaint, investigation and trial. Claims that a woman falsely alleged rape to protect her employment or garner publicity and financial advantage may well be regarded as outrageous, but they are by no means atypical in the day-to-day conduct of Australian sexual offence trials.

In an estimated 50 per cent of sexual assault cases, the complainant’s intoxication is a familiar line of defence scrutiny. A complainant’s intoxication is routinely engaged to undermine the Crown case – in one (or both) of two ways. First, the alcohol or drugs ‘disinhibited’ the complainant (resulting in consent) and they simply cannot now remember their active engagement or they are embarrassed by their behaviour and now looking for ‘excuses’. Second, they were so intoxicated that they can’t remember what happened, or their memory is so partial and fragmented that they cannot be said to be a reliable witness. Again, such claims feature regularly in trials despite the scientific research literature showing that a witness who was drunk at the time of the events is no less likely to be inaccurate about central issues, even if their recall about peripheral details is imperfect.

In announcing that the sexual assault charge against Lehrmann would be dropped, the ACT DPP cites the “unacceptable risk to the life of the complainant”. This phrase evokes the enormity of what has been at stake for Higgins and should remind us about the toll that engagement with the criminal justice system can take on so many sexual offence complainants. This case and its conclusion also remind us that, 40 years on, the mission to transform sexual assault trials, and rid them of rape myths that work profoundly to the disadvantage of victims of sexual violence, remains unfinished.

Julia Quilter is an associate professor in the School of Law at the University of Wollongong.

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Attacks on Higgins outside court were something new. Inside it, not so much

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04.12.2022

Brittany Higgins became a household name in February 2021 when she publicly alleged that, in March 2019, Bruce Lehrmann had sexually assaulted her in the offices of the then Defence Industry Minister Linda Reynolds. Given the pre-existing momentum of the #MeToo movement, the gravity of the alleged crime, and the place where it was alleged to have occurred – the so-called ‘seat of democracy’ – the intense media coverage that followed was unsurprising.

What was extraordinary, from my perspective as a researcher of sexual assault trials for the past 20-plus years, is what followed when Lehrmann’s trial began in the ACT Supreme Court in October. Every moment of the trial, including the complainant’s cross-examination, received extensive media coverage, producing stories in news outlets across the country and internationally.

Former parliamentary staffer Brittany Higgins went public with her allegation in February 2021.Credit:Dominic Lorrimer

This was unusual because one of the features of rape law and trial practice reforms for more than 40 years is that almost all sexual offence trials are held “in camera” – legalese for a closed court – and non-publication orders are made regarding the identity of the complainant backed by a criminal offence. Because Higgins had chosen to dispense with the anonymity to which sexual assault trial complainants are entitled, the media and their audiences were given a rare window into the happenings of a trial.

When ACT DPP Shane Drumgold announced that Lehrmann – who always denied the allegations and pleaded not guilty – would not face a second trial after the jury at the first trial was discharged without reaching a verdict, he said Higgins had “faced a level of personal attack not seen in over 20 years”. This may well be true in relation to comments made outside the trial – in news media and social........

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