Three weeks ago – the day before Justice Michael Lee brought down his judgment in the Lehrmann defamation case – I made an optimistic plea in these pages that no matter what the decision we all accept his call.
It shouldn’t be too hard.
Having meticulously worked his way through the facts, Lee came to two key conclusions: first, Brittany Higgins had been raped by Bruce Lehrmann; second, there had been no attempt by anyone to cover it up.
Who could argue with that?
Well, the two principal characters, for a start.
Lehrmann is now talking about an appeal. Or to use Lee’s parlance, going back – yet again – for his hat. He should leave the loathsome thing where he left it, in the lion’s den. Even before Lee’s verdict it was sullied beyond redemption by his woeful performance in the witness box and extracurricular activities out of it.
Whether the Seven Network knew he was spending its handouts on hookers and drugs – unlikely – is now irrelevant, except to the Seven journalists consumed by the Lehrmann bonfire.
Lee made a sound case that Lehrmann was “hell-bent” on having sex with Higgins and didn’t care one way or the other whether, in her drunk state, she understood or agreed.
Lehrmann’s chances of a successful appeal are minimal – even if he can find someone wealthy and careless enough to fund it.
And then there’s Higgins, vindicated by Lee’s finding that, on the balance of probabilities, she was raped, yet still unwilling to acknowledge his finding that her accusations of a cover-up by Linda Reynolds and Reynolds’ then chief of staff Fiona Brown were utterly false. Having rightly been given the benefit of the doubt over the rape, Higgins now refuses to accept that the claims she and fiance David Sharaz made that destroyed the careers and reputation of Reynolds and Brown were dead wrong.
Both are haunted by Higgins’ false claim that they walked past another woman’s rape.
Neither is remotely helped by her Clayton’s apology last week that “my perceptions and feelings about what happened in the days and weeks after my rape are different from theirs”.
Higgins’ regret that “we have not yet found common ground” just rubs salt in the wounds. What common ground? She made false accusations that devastated the lives of two older women who had only ever tried to help her.
As Higgins said, she was only 24 when she was raped. She is entitled to be given, as Lee did, significant latitude for someone who suffered trauma after a terrible crime. Is it too much to ask, then, that as a now mature and more reflective adult, she offer a genuine and unconditional apology to the two women she wronged?
There is, of course, one large stumbling block for Higgins in apologising to Reynolds in the defamation case the senator has vowed to keep pursuing.
If Higgins admits she made false claims about her treatment by Reynolds and Brown that contributed to her $2.4m settlement from the commonwealth, she might be open to a move by the commonwealth to challenge the payout.
Higgins is in a bind.
She stands to lose a great deal of money from the defamation claim if Reynolds wins, both in costs and damages – but potentially even more if she apologises and admits her claims about her former boss in the commonwealth settlement were untrue.
She should opt for the apology.
The reality is, the commonwealth is unlikely to demand its money back.
Lawyers say some part of the payment would likely be justified on the grounds she was raped by a fellow government employee in a parliamentary office neither of them should ever have been allowed to access at that point.
Though the bulk of the payment was clearly made because of the now-discredited claims that Reynolds and Brown failed to help her after the rape, it would be a fraught legal process to untangle.
Moreover, the optics of any government seeking to recover money from a rape victim would be poor, to say the least.
If letting Higgins keep the money gives back to Reynolds and Brown the most precious thing she stole from them – their reputations – it’s worth the price.
And who knows, it might prompt some kind of ex gratia compensation to Brown, who is in no position to sue but who deserves it more than anyone.
That does not let off the hook those in high office whose responsibility it was to ensure that the Higgins claim was properly scrutinised in the first place, and who deliberately contrived to ensure that witnesses such as Reynolds and Brown were denied the opportunity to present evidence.
That is still a potential case of political interference to be investigated – just not the one Higgins and Sharaz invented.
Higgins says it’s time to heal. The only person who can make that happen is her.
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