Joe Hildebrand: No justice for anyone in outcome of Lehrmann case

There was a time when some things were considered too personal or cruel to be used as a political weapon. Perhaps the sexual assault case against Bruce Lehrmann has reminded us why, writes Joe Hildbrand.

The collapse of the sexual assault case against Bruce Lehrmann is a brutal Shakespearean tragedy played out on the national stage. 

It is a tragedy for Brittany Higgins, whose perilous mental state was the reason for the charges against Lehrmann being dropped. While it is now impossible to reflect on the truth or not of her claims, it is clear the process has been deeply traumatising for her. 

It will also feel like a tragedy for Lehrmann, who in the eyes of some will still be tarred by the allegations against him even though he is now innocent in the eyes of the law.

And separate to this case, it is a tragedy on a broader level for victims and survivors across the nation, whose stories — be they alleged or proven — will inevitably be caught up in the tangle and after wash of Australia’s most high-profile and politically charged sexual assault case.

No doubt the law will prevail as the law decides in the few cases where the law is actually involved, but in the modern febrile sewer of social media and ideological hyperbole, the experiences of Higgins and others — whatever the truth — will be reduced to a political football.

Brittany Higgins leaving the ACT Magistrates Court in Canberra in October. Picture: AFP

The cold hard truth is that there is an inherent difficulty in prosecuting rape allegations. 

Without commenting on the Lehrmann case, most of the time when such allegations are made, there are only two versions of events, one of which is the alleged victim’s and the other the alleged perpetrator’s. This makes a charge of sexual assault often impossible to prove beyond reasonable doubt.

Indeed, even if the far lower threshold of probability were to be applied, it would still be a herculean task in a 50/50, he-said/she-said situation.

That is what makes sexual assault the cruellest of violations: the perverse intimacy by which the perpetrator often lures their victim into a witness-less crime.

Even in the ultimate crime of murder, there is at least a dead body to aid the prosecution. In rape, in the absence of any physical evidence, there is often just an argument.

And that is a darkly ironic legal obstacle for a crime that many consider to be just as abhorrent as the taking of a life.

And yet it is an obstacle that is impossible to overcome if we are to maintain the threshold of reasonable doubt in our justice system. 

If we are to grit our teeth and say that it is better that a guilty person goes free than an innocent person is jailed – the very cornerstone of presumed innocence – then that is a principle from which we cannot avert our gaze.

And so we come back to the awfulness of Higgins’s situation.

Bruce Lehrmann leaving the court with his lawyers in October. Picture: NCA NewsWire / Gary Ramage

While it is now clearly impossible to pass judgment on the truthfulness of her testimony, there is no doubt the publicity given to the case put her under enormous pressure.

At the same time, Lehrmann’s defence team accused Higgins of being motivated by publicity in making the allegations.

The Lehrmann case is also the latest of a number of highly politicised and highly publicised allegations of sexual assault or misconduct that have either failed in the courts or not been tested at all.

The sex abuse charges against George Pell were ultimately unanimously quashed in the High Court, despite the Cardinal being convicted and jailed by lower courts.

The historic allegations against Christian Porter were never even tested in a criminal court, and civil action brought by the former Attorney-General resulted in an out-of-court settlement and clarification by the ABC, as well as an apology by the national broadcaster in court for inaccurate tweets by senior ABC staff about the outcome of that settlement.

Likewise, now-discredited social and mainstream media claims against former MP Andrew Laming of inappropriate behaviour resulted in a flurry of grovelling apologies, the revoking of a Walkley Award and a massive payout by the ABC for the personal tweet of a journalist.

And now we have the heartbreaking spectacle of prosecutors being forced to discontinue the case against Lehrmann because of the toll it has taken on Higgins.

Lehrmann, meanwhile, is now legally an innocent man, yet will be publicly associated with this court case for the rest of his life.

Where, in all of this, is justice for anyone?

All of us in media and politics have been struck by the rush of blood to the head in landing a big story or killer blow. 

But there was a time when some things were considered too personal or cruel to be used as a political weapon. Perhaps now we have been reminded why.