Bruce Lehrmann case shapes as ‘de facto rape trial’

Bruce Lehrmann’s defamation action against two major media companies is set to become a de facto rape trial, with both outlets seeking to prove the allegation he raped Brittany Higgins.

Ten will try to prove the rape claim against Bruce Lehrmann. Picture: NCA NewsWire / Gary Ramage.

Former Liberal staffer Bruce Lehrmann’s defamation action against two major media outlets is set to become a de facto rape trial, with both organisations seeking to prove the allegation he raped Brittany Higgins.

News Corp and the Ten Network filed their defences in the Federal Court on Wednesday, each providing an identical 79-point account of the alleged facts leading up to, during and after the alleged rape in Parliament House in March 2019, which they claim are “substantially true”.

Mr Lehrmann, who has consistently denied raping Ms Higgins, launched defamation proceedings against Ten and News Life Media Pty Ltd – an arm of News Corp Australia – in the Federal Court three weeks ago.

Lisa Wilkinson, former co-host of The Project, and Samantha Maiden, political editor for news.com.au, are second respondents in the proceedings.

Wilkinson filed her own defence last week – after unexpectedly ditching Ten’s legal team – denying that she was seeking to exploit allegations of sexual assault against Mr Lehrmann for personal and professional gain.

Both media outlets, and Wilkinson and Maiden, will rely on defences of truth and qualified privilege.

In pursuing their defence of truth, Ten and News Life Media say Ms Higgins had passed out on a sofa in the office of then minister Linda Reynolds, and woke to find Mr Lehrmann on top of her “having forceful sexual intercourse with Higgins, audibly slapping himself against her”.

“After waking up and realising that Lehrmann was having sexual intercourse with her, Higgins said ‘no’ at least half a dozen times and told Lehrmann to stop. Lehrmann did not stop and continued to have sexual intercourse with Higgins without her consent.

An upset Brittany Higgins outside court. Picture: NCA NewsWire / Gary Ramage

“Higgins had not consented to having sexual intercourse with Lehrmann and was incapable of so consenting because: (a) she was too intoxicated to voluntarily and freely give her consent; and (b) she had been passed out, either asleep or unconscious,” both Ten and News life Media state. “Alternatively … Lehrmann was reckless or indifferent as to whether Higgins had consented to having sexual intercourse with him.”

The two media outlets claim that in the days following her alleged rape, between March 23 and April 8, 2019, Ms Higgins made contemporaneous complaints to at least nine people “in which she consistently described being raped or sexually assaulted by Lehrmann”.

They describe Ms Higgins as having spent “the entire weekend of 23 and 24 March, 2019, crying uncontrollably and bed-bound in her bedroom and there was no reason for her to do so other than the fact that she had been raped by Lehrmann”.

They also list what they say are “Lehrmann’s lies, inconsistencies and consciousness of guilt” including his claim to Ms Higgins earlier in the evening that he needed to go to Parliament House to pick something up from work; that he failed to return six phone calls from his then girlfriend; did not check on Ms Higgins when he left the office; and left in such haste that it was “consistent with a consciousness of guilt for having raped Higgins”.

Each media outlet also relies on a defence of qualified privilege, including that these were political matters of public interest because they involved the government’s handling of an allegation by a political staffer of rape by a colleague and allegations of a political cover-up by the government.

They also cite the response by then prime minister Scott Morrison in parliament to an allegation of rape in a minister’s ­office; and “the conduct of the government in the lead-up to a federal election.”

News Life Media goes further in its public interest defence by citing the importance of the global #MeToo movement between 2017 and 2021. “During this period, there was a stark increase in scrutiny applied to the conduct of politicians and public figures which resulted in a series of high-profile news stories involving allegations of sexual misconduct by politicians in Canberra as part of what is known colloquially as the ‘Canberra bubble’,” the publisher says.

Among the instances it cites are allegations of rape against then federal attorney-general Christian Porter (which he has denied), of sexual harassment against former High Court judge Dyson Heydon, and of former minister Alan Tudge’s extra-marital affair with a former political staffer.

Ten says it did not pay Ms Higgins for the interview, outside of covering the cost of her flights and accommodation in Sydney. It says Mr Lehrmann did not respond to any of its attempts to contact him prior to the broadcast.

Ten’s defence was filed by Thomson Geer Lawyers. The News Life Media defence was filed by News Corp head of litigation Grant McAvaney.