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Business News/ News / A Defamation Trial Shows #MeToo Missed Its Mark in Australia

A Defamation Trial Shows #MeToo Missed Its Mark in Australia

A rare win for victims of rape has laid bare how often criminal jurisdictions fail women. The lesson? Courts should focus on consent, not resistance.

A Defamation Trial Shows #MeToo Missed Its Mark in AustraliaPremium
A Defamation Trial Shows #MeToo Missed Its Mark in Australia

(Bloomberg Opinion) -- A high-profile defamation trial in Australia has scored a win for victims of sexual assault. But the outcome is cold comfort: It came at a high price and showed how women are still being let down when it comes to reporting rape. 

The public interest was such that the final judgment was live streamed, which while not uncommon doesn’t happen all the time. More than 40,000 people tuned in Monday to hear Federal Court Justice Michael Lee read his findings for over 2 ½ hours. At the center of the case, two Canberra political staffers. Lee threw out Bruce Lehrmann’s defamation suit against a media outlet that aired the sexual assault allegations, and found that “on the balance of probabilities" he raped Brittany Higgins at Parliament House in 2019 after a night out drinking.

The finding is a bittersweet victory for consent advocates who want perpetrators criminally prosecuted, although civil trials are generally seen as the next best thing. In the US, the late OJ Simpson was found liable in a civil court for the deaths of his ex-wife and a friend in 1997, after being acquitted of their murders in a 1995 criminal trial. E. Jean Carroll won her case in a civil trial against Donald Trump for defaming her when he denied sexually assaulting her. 

At the heart of these cases is often the he-said-she-said element. That is part of the reason why incidents go under-reported. Women are often reluctant to come forward because of how their reaction both during and after an assault — driven by shame, guilt, embarrassment, or fear — conflicts with perceptions of how they ought to react. The Australian defamation ruling is an important rejection of what the judge called “historical conceptions of rape, which relied upon notions of force and resistance, rather than the contemporary focus on voluntary consent." It’s high time that notion was adopted into law across the world, and applied in police stations, courtrooms and prosecutors’ offices.

Still, the case is likely to do little to advance the #MeToo movement in Australia, often referred to as the defamation capital of the world. The legal system puts a high burden of proof on publishers in libel suits, and that’s deterred women from coming forward for fear of being sued by their attackers. For that reason, unlike in the US, the movement has had limited success, as my colleague David Fickling wrote. 

Lehrmann has always denied the claims against him. He pleaded not guilty to one charge of sexual intercourse without consent in a criminal trial that ended up being thrown out in 2022. A second trial didn’t go ahead and he hasn’t been convicted of any offence. A hearing on costs in the defamation trial will be held next week, and he faces a massive legal bill.

“Having escaped the lions’ den, Mr. Lehrmann made the mistake of going back for his hat," Lee quipped in a now memorable line from a judgment filled with zingers. 

The miscalculation vindicated Higgins, though no one escaped without rebuke (Higgins herself was found “an unsatisfactory witness") in what over three years unfolded into a sorry epic, or as Lee put it, an “omnishambles." But perhaps worst of all, a woman’s experience of sexual assault ended up being dragged through the courts, caught in the crosshairs of media, law and politics, and overshadowed by a cast of players with their own agendas. Higgins and her partner left Australia to live in France.

Australia’s defamation laws act as a significant disincentive to victims of sexual harassment from making a complaint, a national inquiry found in 2020. Its recommendations that women reporting rape be protected from defamation have yet to be implemented. Which is why the findings in this trial are being hailed as a victory, however imperfect. It is a rare win for a media company that gave a woman a platform to advance the narrative around sexual abuse allegations.

Sarah Ailwood, an academic at the University of Wollongong who researches law reform in the #MeToo era and is managing editor of the Australian Feminist Law Journal, was reluctant to call it a watershed moment. She hopes future judges and juries in similar cases will adopt the “trauma informed" approach of Justice Lee (Higgins’ actions were “consistent with the actions of a sexual assault victim dealing with trauma," he said), but systemic and structural issues need to be addressed for women to speak out about violence without the threat of being sued for defamation. 

“This case is one case, it’s one decision," Ailwood told me. “#MeToo did provide an opportunity for women to speak publicly. And we know that established ways of doing that with the police and with employers and with other sources of authority have historically not worked well for women trying to address violence. This case highlights some of the advantages, but also some of the perils of taking a different approach."

The media has been a useful tool in the #MeToo era, giving women an avenue to hold perpetrators accountable and bring them to justice. But it can be an unreliable conduit; the Higgins/Lehrmann saga is far from over — there is another defamation case pending, this one against Higgins and her partner. Lehrmann could appeal the Federal Court finding. So let this be a cautionary tale about what can happen when criminal jurisdictions fail victims of sexual assault. This is a win, but with a small w. 

More From Bloomberg Opinion: 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Andreea Papuc is a Bloomberg Opinion editor.

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©2024 Bloomberg L.P.

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Published: 19 Apr 2024, 12:55 AM IST
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