In Robert Bolt’s play A Man for All Seasons, which was a textbook back in my high school in India, the following exchange occurs between Sir Thomas More and his future son-in-law William Roper. When More says he would grant the protection of the law even to the devil, Roper counters that he’d ‘cut down every law’ in order ‘to get after the Devil.’ More responds:
Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
I grew up in India being taught and believing that the United States was a nation of laws. The inaptly-named ‘progressive’ pursuit of social justice (think putting convicted rapists into women’s prisons) has been white-anting Western societies, including the US, for some years now. The rise of identity politics, in particular around the faddish notions of critical race theory and gender ideology, has occurred alongside the erosion of social cohesion and political stability.
These were preceded by increasingly radicalised and unhinged attacks on toxic masculinity – attacks on male privilege came long before attacks on white privilege. This culminated in the #MeToo moment when women had to be believed and men vilified, defenestrated, and perhaps even incarcerated, no matter how thin the evidence and how absurd the alleged victimisation and grievance narrative (including a date who did not meet expectations by failing to read ‘non-verbal’ cues about the woman’s preferences between red and white wine!).
In the process longstanding pillars of Western jurisprudence and criminal justice systems have come under sustained assault to the point of breaking down entirely. Thus in Canada courts have begun to use minority racial identity as a mitigating factor to be taken into account when sentencing people who have been convicted of crimes. And we are unlikely ever to know the number of male victims of miscarriages of justice in sexual assault cases – victims of illiberal liberalism – with the weakened commitment to the key principles of equal protection of the law, due process, and innocent until proven guilty.
This is at its most dangerous at the confluence, in the name of social justice, identity-based victimhood narratives, and bitterly partisan politics when allegations of misdeeds are weaponised in efforts to destroy political opponents in order to gain or hold on to power. This happened in the United States during Justice Brett Kavanaugh’s Supreme Court confirmation hearings. It remains an unfinished story in Australia in the case of Brittany Higgins.
On 15 April, Justice Michael Lee brought down the curtain on Bruce Lehrmann’s suit against Network Ten and its star reporter Lisa Wilkinson. His statement explaining the salient points of the judgment was a masterclass of judicial reasoning and judicious conclusions, sifting evidence-based facts from allegations and suppositions, drawing logical inferences, and not holding back on calling out falsehoods and mendacity. Nevertheless, there are four troubling aspects of the verdict. But first, a caveat. Lee likely applied the law as enacted by parliament regardless of his individual views on these matters and his knowledge of the law is obviously superior to my nonexistent legal qualifications.
Background
In 2021, Higgins was a junior staffer to Liberal Party cabinet minister Michaelia Cash. On 15 February, in two interviews with Samantha Maiden of news.com.au, published that morning, and Ten’s show The Project with Wilkinson, broadcast that evening. Higgins alleged she’d been raped in the early hours of Saturday 23 March 2019 in the ministerial suite of defence minister Linda Reynolds, for whom she worked at the time. On 7 August 2021, Lehrmann, also a Reynolds staffer, was publicly named as the alleged attacker.
The two had gone out with other aides on Friday to celebrate the end of the working week by partying in clubs. Over the course of the evening, Higgins consumed more than a dozen alcoholic drinks (paragraph 395 of Lee’s judgment), some supplied or handed to her by Lehrmann after she had already had six drinks. When she was ready to call a taxi, he suggested he could drop her off in his Uber ride, but first, he needed to detour to Parliament House to pick up some work for the weekend.
Their entrance into parliament was recorded on camera at the security barrier at 1.40 am. Lehrmann was recorded leaving, alone, 40 minutes later. Hours later, Higgins was discovered in a state of undress on a couch in the suite. She claimed she had woken up to find Lehrmann on top of her and said no multiple times, but he proceeded to engage in sexual intercourse anyway. Her departure from the building was recorded at around 10 am.
On 26 March, Reynolds’ chief of staff Fiona Brown was informed by parliamentary services of a security breach and she summoned and interviewed both characters. Lerhmann’s employment was terminated on 5 April and Higgins met with the police on 8 April.
On 27 January 2021, Higgins and her partner David Sharaz met with Wilkinson and her producer. Higgins resigned on the 29th, recorded an interview with Wilkinson on 2 February, and reopened her police complaint on the 4th. As well as accusing Lehrmann of rape, she alleged that Brown and Reynolds had prioritised Reynolds’ and the party’s political interests above her safety. The Project in particular ran with the political coverup as its main narrative arc.
On 17 August, Lehrmann was charged with sexual intercourse without consent. He pleaded not guilty on 16 September and flatly rejected that any sex had occurred. The criminal trial began in Canberra on 4 October 2022 with ACT Chief Justice Lucy McCallum presiding. The jury began deliberating on 19 October and was still deadlocked on the 27th when a juror was discovered to have brought into the jury room an academic paper discussing the frequency of cases of false allegations of sexual assault. The case was aborted. On 2 December the prosecution decided against a second trial out of concerns for Higgins’s mental health.
As a footnote, the ACT prosecutor lost his job because of evident bias against Lehrmann and serious allegations of police coverup and political interference that he failed to substantiate and was forced to retract in court.
On 7 February 2023, Lehrmann initiated defamation proceedings against Ten and news.com.au in a federal court. The trial began in Sydney before Justice Lee on 22 November. Ten and Wilkinson, the latter with her own separate counsel because she did not want her interests subordinated to the network’s corporate interests, entered a defence of qualified privilege based on the public interest, and truth based on a civil standard of proof. In the interests of open justice, Lee opened the trial to be broadcast on the court’s YouTube channel.
On 15 April, Lee found that ‘Mr Lehrmann raped Ms Higgins in Parliament House.’ He therefore accepted the truth defence and dismissed Lehrmann’s defamation action.
Ten had argued that because Lehrmann denied there was any sexual intercourse, the defence of consensual sex was not available to him. If sex occurred, it could only be rape (563). Lee offered a taxonomy of recklessness: ‘possibility recklessness’ (being aware that the complainant might not be consenting), ‘inadvertent recklessness’ (failing to consider whether she is consenting), and ‘indifference recklessness’ (being indifferent as to whether or not she had consented) (595). Lee found Lehrmann guilty of rape (620) on the last count:
he was so intent upon gratification to be indifferent to Ms Higgins’ consent, and hence went ahead with sexual intercourse without caring whether she consented’ (600);
In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on (601).
The next installment in the saga will be defamation proceedings brought by Reynolds against Higgins and Sharaz.
The opposition parties and some independent analysts are also demanding that the national anti-corruption commission investigate the actions of Senators Katy Gallagher (finance minister) and Penny Wong (foreign minister), who used the Project’s imputations to allege political coverup of a criminal rape inside parliament. The Labor Party won the federal election in May 2022. In December 2022, Higgins was reported to be considering compensation claims against the federal government. On 13 December, she was awarded AUD 2.445 million (216). Reynolds, Cash, and Brown were ordered by the Attorney-General not to appear at the hearing to provide their versions of the story and the proceedings were concluded in a matter of hours in one day.
With regard to the $2.445 million payout from the federal government, Higgins gave an express warranty of truthfulness (216). But Lee found that ‘several things being alleged were untrue’ (240).
The photograph of the bruise on her leg was sworn to be ‘of an injury suffered during the rape,’ but during the trial, she walked back that assertion and accepted the bruise could have resulted from another cause like a fall. Lee found her inconsistencies on this point ‘both important and vexing’ (242-44).
Degrees of Culpability of Many, Guilty Verdict for One
Among the four most powerful words in the English language are ‘But that’s not fair!’ Behind them lies our innate, learned, and internalised sense of justice. It is what drives people to stand up and be counted, sometimes at great loss, sometimes at personal risk, even to the point of death. Without a sense of justice, we regress to the law of the jungle. With a shared sense of justice, we have society.
On odd occasions, the law produces unjust outcomes. We usually accept these in the larger public interest of maintaining a society based on the rule of law. But if it happens frequently, then the laws must be changed or else people will rebel against the legal order, as with apartheid.
When laws habitually diverge from justice, the system of laws becomes illegitimate. On rare occasions the law results in such an egregious injustice that the law itself is derided as an ass, but without calling into question the whole system.
For law and justice to coincide and for justice to be seen to be done, the correct procedures must also be followed. This includes the possibility of acquittal. A society in which the mere fact of charges being laid carries the presumption of guilt and certainty of conviction is neither democratic, nor one in which I would care to live.
Lee described the Higgins-Lehrmann saga as an ‘omnishambles’ (2). Most of the main players come out with badly soiled reputations. However former minister Reynolds emerges with her reputation restored and her chief of staff Brown is the one true hero of the sordid tale for her integrity and compassion-tinged decision-making. All others engaged in falsehoods, half-truths, evasiveness, convenient lapses of memory, electronic records inadvertently scrubbed, etc.
This makes it less than satisfactory that the main weight of the verdict falls solely on Lehrmann. How can justice be seen to have been done? Rather, it’s more of a social justice outcome.
Inequitable Application of ‘Balance of Probabilities’ Civil Standard
Second, the civil standard used to convict Lehrmann of rape was that of the ‘balance of probabilities.’ Lee explained his reasoning cogently yet succinctly. Lehrmann was clearly interested in sex with Higgins and plied her with drinks as a time-tested technique of loosening inhibitions, as recognised by Lee (120). With no previous evidence of being a workaholic, and a girlfriend awaiting him at home, he took her to the minister’s suite in parliament with the intention of consummating his passion. Hence his refusal to answer calls from his girlfriend and hurry to get back to her after completing his business without first ensuring Higgins’ safety and welfare.
So far, so good.
The problem is: why is the same ‘balance of probabilities’ standard not applicable to Higgins’s conduct? She was an adult in a responsible position. There’s no suggestion of a date rape drug. Rather, she imbibed generously but not wisely and engaged enthusiastically in amorous foreplay (passionate kissing and sexualised touching) of her own will. She did not demur at going back to the minister’s suite. Perhaps she had a sudden drink-fuelled urge to admire the paintings in the room? His intentions were so clearly telegraphed that she could have chosen to wait in the Uber while he collected whatever papers he needed. Instead, she can be seen on CCTV footage skipping willingly behind him.
If we put all this together, along with the still persisting social expectation for the male to take the lead in such courtship rituals, is it unreasonable to infer consent on the balance of probabilities?
The judge explained away her many inconsistencies, omissions, and memory lapses in reporting the rape with reference to the trauma of the event (117). But this is an acceptable explanation only if it is first assumed that she was raped. The conclusion follows from the assumption: it is circular, not deductive reasoning. There is a fine line between the examples of untruths being consistent with post-rape trauma, on the one hand, and being treated as evidence of rape, on the other.
Even if sexual intercourse did take place, in light of the consensual elements until the moment they entered the office, is the trauma – on the balance of probabilities – likely to have been severe enough to explain the omissions and inconsistencies? The alternative explanation, that she became desperate to salvage her public reputation and career, seems just as likely.
A Hostile Culture for Men, Especially if White
Third, looking at the totality of the evidence, Lehrmann’s actions reveal, at best, a dubious and sleazy character. One, moreover, who is not quite the brightest bulb in the intellectual firmament. One of the most quotable sentences from the judgment is that having escaped from the lion’s den in the criminal trial, in launching his defamation suit under the lower civil standard of proof he chose to return for the hat.
Granting that and putting it aside because stupidity in itself is not a crime, under contemporary norms the social stigma and legal consequences of being charged with and convicted of rape are at least as bad as, if not worse than, being the victim of rape. No stigma should attach in the latter case at all, even though in some minds it might. Consequently, there should be an equally stringent bar for conviction.
In this particular case there was no physical evidence of sexual intercourse, none at all. From the reasonable conclusion that Lehrmann wanted sex (as did Higgins, perhaps?), the more questionable inference is drawn that her state of undress and foetal position when discovered by a cleaner demonstrate that sex did take place. With respect, that seems too thin a reed on which to hang a man.
There’s a double standard at play, where the woman is effectively infantilised and denied responsible agency. Being too intoxicated is an acceptable excuse to transfer the burden of proof and responsibility entirely to the male defendant for whom being drunk is no excuse. He must bear the responsibility both for his own choices even if intoxicated and for her choices even if too inebriated to make active choices. Heads she wins and tails he loses, when the objective evidence indicates two young and immature people, both seemingly keen on each other and returning to a site where they could consummate their fantasies.
The problem is that under contemporary norms in the West, to say anything judgmental, or to be seen to be judgmental, about a woman’s sexual behaviour and the choices she makes is to invite a social media pile-on demanding public censure and dismissal.
Yet it is permissible to characterise Lehrmann’s conduct in judgmental language. Judge Lee writes: ‘Mr Lehrmann was still behaving dishonourably by having sexual intercourse with Ms Higgins while in a relationship, and his girlfriend was trying to contact him;’ and that, having ‘satisfied himself,’ calling an Uber and exiting the building, leaving Higgins behind in the minister’s office in a state of undress, was ‘the action of a cad’ (573). But no female equivalent descriptor is applied to Higgins, even though she left the party with someone other than he ‘that brung her to the dance.’
Related to this, the law simply dismisses the reality that some women too can act unwisely, succumb to temptation in the heat of the moment, and change their stories subsequently either because they regret their ethical lapse, or because they fear the consequences for their marriage/relationship (Chinese actor Gao Yunxiang was acquitted of rape by a Sydney jury in 2020); and some are outright malicious (Google the Tom Molomby and Elanor Williams cases last year), manipulative (see the case of boxer Harry Garside last year) and use sex consciously as a weapon.
The standard narrative holds to the view that the rate of false allegations of rape is an extremely low 2.5-5.0 percent, not enough to be worried about it. Yet a literature review by two Australians, Tom Nankivell and John Papadimitriou, concluded the actual rate is likely 10-15 percent.
Sri Lankan cricket star Danushka Gunathilaka was accused of assaulting a Sydney woman at her home after a Tinder date in November 2022. The multiple initial charges of rape had been reduced to a single charge of stealthing (removing a condom without consent) by the time of the trial. He was acquitted and permitted to leave Australia ten months later in September 2023 after a four-day trial in a NSW district court. The complainant, whose identity cannot be revealed, said she had consented only to protected sex. His lawyer argued that she had changed her story several times since her first set of accusations. By contrast, Judge Sarah Huggett found Gunathilaka had answered every question asked by the police, ‘doing his best to be truthful,’ while the complainant had given different accounts.
Andrew Malkinson is a 57-year-old security guard who spent 17 years in a UK prison after being convicted of a rape in Manchester on 19 July 2003 that he did not commit. Appeal court judges overturned his conviction in July last year after DNA evidence using new technology implicated another man. Originally sentenced to a minimum term of seven years, he was perversely kept incarcerated for another decade because he insisted he was innocent of the crime. Or take the case of MLB star Trevor Bauer and Lindsey Hill in the US.
#MeToo put women beyond and above the law, privileging social media over institutional routes like police and courts to ensure accountability and justice. In the last two years, several judges – Penelope Wass in R v DS and R v SGH, Gordon Lerve in R v Cowled, Robert Newlinds in R v Martinez, Peter Whitford in R v Smith (in Australia, R stands for ‘Regina’ meaning the Crown) – have issued scathing remarks from the bench decrying the recent propensity of prosecutors bringing ‘lazy and perhaps politically expedient’ but unserious and unmeritorious sexual assault cases that have little prospect of a conviction, where defendants are acquitted by juries with ‘befitting alacrity,’ but only after having spent a considerable period of time in jail awaiting trial.
As Judge Newlinds noted in December last year:
The prosecutor failed to perform the important role of filtering hopeless cases out of the system and has thus been the primary cause of this applicant spending eight months in jail for a crime he did not commit.
The cases also impose burdens on the criminal justice system and sometimes end up with humiliation for the complainants themselves. This indicates that prosecutors have failed in their duty of ‘professional examination of…the public interest in pursuing the prosecution’ (Judge Whitford). The likely blame for this can be traced to the febrile atmosphere created by the #MeToo movement. Janet Albrechtsen, the lawyer-columnist for the Australian, commented that: ‘The legal response to the #MeToo movement must not be a lower standard for charging to satisfy a drive to bring an unpopular group of defendants into court more easily.’
In a long, thoughtful, and painfully honest recent essay in Quillette, Larissa Phillips recalls her violent rape in Florence in 2001 and recovery from the trauma. She writes that women too can make reckless decisions regarding their personal safety. Responsible decisions by rape victims would include reporting the crime to the police and requesting a medical examination. Higgins wiped her phone record of text messages and photos (248–49) and created a media storm before filing a police complaint. We are trapped in an age where those who demand the scales be tilted even more towards women complainants are valorised but anyone who dares to urge a more equitable balance of responsibilities is vilified.
Other Examples of Anti-Male Bias
The toxicity of masculinity has given way to a crisis of masculinity. The intellectually lazy phrase ‘toxic masculinity’ contributes to the generalised demonisation of all men. In Free Women, Free Men (2018), Camille Paglia attacks feminist theory’s failure ‘to acknowledge the enormous care that most men have provided to women and children’ (p. 133). Bettina Arndt notes that Australian women live four years longer than men, yet in 2022 the National Health and Medical Research Council allocated over six times more funding to research on women’s health compared to men’s.
Schools routinely admonish boys for toxic masculinity as they face a ‘negative narrative and indifference’ in classrooms, the UK parliament heard in March. Conservative MP Steve Double warned of the dangers of constantly putting boys down in the effort to improve female equality. In the same month Kirk Wood, a lecturer at Halesowen College near Birmingham was awarded compensation by a tribunal for having been wrongfully dismissed following fabricated ‘career-ending’ allegations made by a 19-year-old female pupil against him. She was avenging safeguarding concerns about her communicated to the college by him.
A report in the Telegraph (UK) on 31 March bluntly noted: ‘Britain has a boy problem. If you are born male today, you are increasingly likely to struggle in school, in the workplace and at home.’ According to the Institute for Fiscal Studies, ‘a significant gender gap in both cognitive and socio-emotional development’ has already emerged by age three.
Specialists note that female suicides are predominantly linked to mental health problems. For men it is more likely to be related to life crisis situations like the breakdown of marriage or relationship, financial stress, and work problems (including joblessness).
According to a report from the Australian Bureau of Statistics (ABS) in December 2023, suicide was the 15th leading cause of Australian deaths in 2022. When the average age of different causes of death is factored in, measured by years of potential life lost (the ABS equivalent of quality-adjusted life years), with a median age of 46.0 years, suicide jumps to become the number 1 leading cause of death in Australia at almost 110,000 lost years, with heart diseases being the second leading cause at under 80,000 lost years (p. 32).
The gender difference in suicide rates is stark but rarely discussed. The ABS report documented a total of 2,455 male and 794 female cases of suicide in Australia (p. 64). Thus men accounted for 75.6 percent of the 3,249 suicides. It’s the 11th leading cause of death for males against 26th for females. For Aboriginal and Torres Strait Islander males and females, suicides are the second and tenth leading cause of death, respectively (p. 53). The Australian statistics are mirrored in the UK, where suicide is also the biggest cause of death of men under 50 and males account for 75 percent of all suicides.
Maybe it’s time for a dedicated Minister for Men, in Australia as well as in the UK?
Get-Out-of-Jail-Free Card for Media Recklessness
Fourth, Judge Lee adjudged Lehrmann to be guilty of rape ‘simply by being recklessly indifferent to whether or not there was consent’ (624). The Wilkinson episode was broadcast by Ten before the rape trial had even begun. Neither she nor Network Ten was in any position to judge the merits of the allegation prior to its being tested in court. They could not have known the truth at the time of the broadcast.
Therefore the broadcast was entirely reckless in its imputation that rape had occurred and that Lehrmann was the clearly identifiable perpetrator. The legal, social, and mental health damage of this charge was bound to be enormous for the young man concerned. How exactly does a subsequent finding of truth retrospectively validate the decisions and actions of Wilkinson and Ten? Or, to put it in the same language used to condemn Lehrmann for eternity, why should Wilkinson and Ten escape a matching judgment of indifferent recklessness?
Lessons from India
India remains a terrible country for women, ranked the worst in the G20 in 2012 and again in 2018. In early March a Brazilian-Spanish tourist on a motorbike tour with her partner was gang-raped in the state of Jharkhand, provoking mass outrage in the country. The most politically powerful are among the most shockingly predatory, as can be seen in this case, involving the grandson of a former prime minister no less, that is currently roiling Indian politics in the middle of its general election.
In the words of Sri Lanka’s Radhika Commaraswamy, the former UN Secretary-General’s Special Representative on Children and Armed Conflict, in South Asia:
Even before birth women suffer from sex selective abortion, at infancy they may face female infanticide, as young children they will have to put up with incest and son preference, as adolescents they may be sexually abused or trafficked, as young women they may suffer rape, sexual harassment, acid attacks; as wives they may experience domestic violence, dowry related violence, marital rape or honour killings, and as widows they may be required to self immolate or be deprived of property or dignity. The vulnerability to violence at every stage of their life-cycle makes VAW [violence against women] a terrible south Asian legacy that requires concerted regional, national and local level action (p. 4730).
The problem is real and undeniable. In December 2012, India was rocked by the brutal gang rape-cum-murder of a young woman in Delhi. Responding to the revulsion that swept the land, the government created special courts to fast-track sexual assault cases, toughened punishment for sex crimes, and lifted due process safeguards for alleged offenders.
At the same time, however, India also provides a salutary example of the dangers of the woke slogan, ‘We believe her,’ and the backlash it spawned because it is open to wide abuse. Laws that promote gender equality are contradicted by others that infantilise women in sexual relationships as passive victims without agency. Official statistics show that in 26 percent of the 38,947 rape cases in 2016, rape was alleged because of the false promise of marriage. The women had consensual sex in the belief that marriage would follow.
On 10 May 2019, a court in Rohtak, Haryana ordered the police to file a case against a woman who was a serial extortionist, demanding money under threat of filing rape cases. Other courts, many involving women judges, have concluded that the law is often abused to pursue a vendetta when a relationship ruptures without a happily-ever-after fairytale ending. Also, India remains a deeply patriarchal society in which women can be coerced by male family members to launch false claims of attempted rape as a means of settling scores or property disputes.
In September 2022, Indian media reported about the strange case of a 27-year-old woman from Jabalpur in the state of Madhya Pradesh. Over a six-year period, she had filed six separate criminal complaints against four men – three of them former boyfriends and one purportedly her ‘husband’ – alleging rape and criminal intimidation. The first three faced charges of rape on the ‘pretext of marriage,’ forced unnatural sex, taking videos and photographs without consent, and threatening to post these online. Then a fifth man approached the Jabalpur district court with a complaint against the woman, accusing her of threatening to implicate him in a rape case and demanding money. At that stage, the police opened an investigation against her of attempted extortion and criminal intimidation. In February 2024, Sonia Keswani was arrested and indicted on blackmail and extortion charges.
The case of actor Karan Oberoi is a good example of the systemic pathology. A former lover complained of rape and extortion. He was arrested before any investigation and named, she was not. He said she had obsessed about and stalked him, and electronic evidence would back his version. On 7 June 2019, a female Justice of the Bombay High Court queried why the police waited a month before seizing the complainant’s phone to evaluate her communications with Oberoi. He was refused bail during that period. On 17 June, she was arrested and charged with filing a false complaint and orchestrating an attack on herself on 25 May to keep him in custody.
In May 2019, protestors in Delhi demanded equal treatment for men and women in sexual assault cases, for example by ensuring anonymity of all parties until a case is concluded. Another protest demanded justice for victims of false accusations of rape.
The lesson is to privilege fact-finding and evidence over gender, put faith in a due process-centred rule of law over mob rule, reaffirm presumption of innocence until proven guilty, and promote even-handed equality through gender-neutral (and race-, religion-, and caste-neutral) laws and procedures. In other words, justice for all before social justice for favoured protected groups.
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