Bruce Lehrmann judgment: Justice Michael Lee shoots down ‘rape myths’ in weighing up credibilities

From Brittany Higgins’ emails to Bruce Lehrmann, a lack of an STD test and those who say believe all women, Justice Michael Lee has weighed in on the ‘expected behaviour of rape victims’.

Justice Michael Lee delivers his judgment in the Lehrmann defamation case in Sydney on Monday.

In finding that Bruce Lehrmann had sex with Brittany Higgins and that she did not consent, judge ­Michael Lee was required to shoot down a number of “myths” about the so-called typical behaviours of rape victims.

Justice Lee warned the court, in his first few remarks, that those who “are disposed to be sceptical about complaints of sexual assault and hold stereotyped beliefs about the expected behaviour of rape victims” or what were known as “rape myths”, would blindly dismiss his findings.

He equally berated those who “believe all women” and in turn “surrender their critical faculties”.

Mr Lehrmann, in his defamation case against Network 10 and Lisa Wilkinson, relied heavily on what his legal team called Ms Higgins’s “counter-intuitive behaviours” following the rape as evidence of her unreliability.

Bruce Lehrmann emerges from court on Monday. Picture: Getty Images

Justice Lee, in his Judgement on Monday, said it was “dangerous” and “superficial” to make assumptions about the reliability of a sexual assault complainant based on “so-called ‘typical behaviours’ of genuine victims”.

This was “despite other concerns as to her creditworthiness”, he said. The fact she accepted a coffee from Mr Lehrmann and sent an email to him “phoning a friend” in the days after the incident at Parliament House did not rule out rape occurring.

“In considering the validity of (her) allegation, I do not consider (her) actions in accepting a cup of coffee or responding to emails about news alerts or requesting Mr Lehrmann’s professional help as important,” he said.

“They are consistent with there not being any issue between them but again, on the assumption she was a victim, they can be readily characterised as the actions of a woman who had not yet come to terms with what had happened to her but needed to confront the ­reality she had to work out a way of being in the same professional office as a male colleague who had assaulted her.

Brittany Higgins. Picture: NCA NewsWire / Jeremy Piper

“I have little doubt that if she had been raped, that by the time of these interactions, it is quite conceivable Ms Higgins would be driven by conflicting emotions: self-doubt, concern that she would be humiliated by word leaking out to her colleagues; questioning the prudence of her own behaviour.”

Mr Lehrmann also argued that Ms Higgins’s failure to have a sexually transmitted infection check performed by a doctor despite telling her former boyfriend Ben Dilla­way she believed Mr Lehrmann “finished’ inside [of her]” in a text, was “powerful evidence Ms Higgins knew no sexual activity had taken place”.

Justice Lee rejected that submission. “There may be many reasons on the assumption Ms Higgins was a victim of rape for her not wanting to subject herself to such a process, particularly when the surrounding contemporaneous material suggests she had no intention of pursuing a complaint with the police at this time,” he said.

Justice Lee acknowledged that because Ms Higgins did not “fight or flight” during a sexual assault did not mean sex was consensual. “Ordinary human experience suggests sexual assault victims vary in behaviour, including during a sexual assault – the notion a woman is expected to either ‘fight or flight’ to then be accepted as having been a victim of sexual assault is not only not reasonably open but wrongheaded,” he said.