Justice Michael Lee has found that Bruce Lehrmann did rape Brittany Higgins in Linda Reynold’s office at Parliament House, based on the civil court’s standard of proof, which is defined as the balance of probabilities that it is more likely than not.
The Justice handed down his decision as the result of a civil defamation case brought by Bruce Lehrmann against Channel 10 and journalist Lisa Wilkinson for a 2021 The Project interview with Brittany Higgins.
Lehrmann alleged that he was defamed in coverage where Higgins spoke of her ordeal, claiming that although he was not explicitly named, he was identifiable.
Lee’s full ruling will be handed down in a 324-page judgement, but he provided an oral overview of the findings which were livestreamed online. The oral summary was equally lengthy, due to the complexity of the case at hand.
What Did Justice Lee Find In Bruce Lehrmann’s Defamation Case?
Justice Lee found that there were considerable problems with both Lehrmann and Higgins’ retellings and called them both “unreliable historians”. Yet, even with that in mind, he does believe that sexual intercourse did take place in Reynold’s office.
Lee reviewed the amount that Higgins had drunk on the night and her state of mind upon entering Parliament House, as well as Mr Lehrmann’s likely intentions on, as he put it, on that “fateful night”.
“I’ve reached a state of actual persuasion on the balance of probabilities that Ms Higgins, A, was not fully aware of her surroundings when sexual intercourse commenced and, B, did not consent to intercourse when she became aware Mr Lehrmann was on top of her,” he said.
Lee says Ms Higgins’ testimony “struck me forcibly as being credible and having the ring of truth”.
While he rejected the notion that Ms Higgins audibly protested repeatedly throughout the ordeal, he acknowledged that the idea of a ‘flight or fight’ response is outdated, and that some sexual assault victims find themselves disassociating or immobilized during such incidents.
He found it more likely that she was passive, referencing a text she had sent about the incident that she was “like a log”, but never gave active, voluntary consent.
He found that Mr Lehrmann’s state of mind was such that he was indifferent and went ahead “willy nilly”.
The Justice was satisfied that Lehrmann was so “intent on gratification” that he went ahead without caring if Ms Higgins consented. Adding that he was “hellbent” on having sex with her.
Judge Lee’s Verdict Is Revealed
“In summary, I consider it more likely than not in those early hours, after a long night of conviviality and drinking and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hellbent on having sex with a woman he: A, found sexually attractive; B, had been mutually passionately kissing and touching; C, had encouraged to drink, and D, knew had reduced inhibitions because she was very drunk,” he said.
“In his pursuit of gratification, he did not care one way or the other whether Ms Higgins understood or agreed to what was going on,” he added. “Mr Lehrmann raped Ms Higgins.”
Justice Lee’s ruling backs Network 10’s truth defense, meaning that Lehrmann’s defamation case has officially failed.
In handing down his decision, Lee has also validated Higgins’ claims that she has been forced to recount many times since the incident in 2019.
“[Mr Lehrmann] has now been found, at the civil standard of proof, to engage in a great wrong. It follows Ms Higgins has been proven to be a victim of sexual assault.”
The Justice pointed out the irony that this decision has come to light in a case brought by Mr Lehrmann himself, after the 2022 criminal case was thrown out due to juror misconduct.
“Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat,” Lee said.
What Was Bruce Lehrmann’s Defamation Case About?
Lehrmann sued Network Ten and journalist Lisa Wilkinson for an interview on The Project with Brittany Higgins, which aired in February 2021. In the interview Higgins claimed that she was assaulted on minister Linda Reynold’s couch in Parliament House.
While Lehrmann was not named in the broadcast, he alleges that people would have been able to identify him. Thus, Lehrmann sued both broadcaster and journalist for defamation.
Lehrmann has always denied Higgins’ allegations. He pleaded not guilty in a previous criminal trial, which was aborted in 2022 after it was found that a juror had done external research on the case. Prosecutors consequently dropped the charges against Lehrmann citing that retrial would pose an “unacceptable risk” to Higgins’ health.
Does This Mean Bruce Lehrmann Is Guilty?
In response to Lehrmann’s civil suit, Channel 10 and Wilkinson relied on the defense of truth and qualified privilege. Their primary truth defense succeeded in proving, to the civil standard (that on the balance of probabilities that it is more likely than not), that Lehrmann raped Higgins. This is a lower standard of proof than the criminal court’s ‘beyond reasonable doubt’.
They also used the fallback defense of qualified privilege, which protects publications where the person communicating the statement has acted reasonably, and the recipient (the public in this case) has a corresponding interest in receiving it.
While Justice Lee’s finding is a landmark decision, he said that he made the decision on the civil basis of probability, and thus his finding does not amount to a criminal conviction.
