On Monday, April 15, Justice Michael Lee handed down his verdict in Bruce Lehrmann’s defamation trial against Lisa Wilkinson and Network Ten. The culmination of three years of painful public discourse came down to this: on the balance of probabilities, Lehrmann did rape Brittany Higgins that night in Parliament House. And because this is true, Wilkinson and Ten were allowed to broadcast the story.
In the days since the verdict, I’ve noticed an eagerness to position this result (public confirmation that Lehrmann is, indeed, a rapist) as a kind of justice, for Higgins and for sexual assault survivors more broadly. I understand why – the prospect of a survivor finding justice in Australia’s current criminal justice system is grim. Only 30% of sexual assaults reported to police result in any kind of legal action (ranging from a caution to an arrest). The minority of cases that do make it to trial force survivors into what Dr Rachael Burgin and Saxon Mullins call a “fatally flawed” process. “A fundamental criticism of the criminal justice system’s response to sexual violence is the obsession with the actions of the victim, and the almost ignorance to the accused’s behaviour.”
If the purpose of justice is to make known what this person did, prevent them from doing it again and perhaps compensate a survivor for their suffering in some way (even if not financially)… the current criminal system doesn’t achieve it. Going public with the story of what happened to you – whether that is to your social circle or to the whole nation – can achieve those same goals. It comes with risk, requires bravery and resilience, but so does the formal justice system. From writing names of predators on bathroom stalls to calling out disrespectful behaviour online, when women have little to no structural protection we are left with no choice but to wield the soft power we do have in the absence of justice.
So I understand why it might look like the better route. But this version of justice is still completely inaccessible to most victims of sexual abuse and replicates the same power structures as the existing systems.
Higgins is a white, cis, straight, university educated young professional in an elite workplace. If she was not these things, would the media have been as interested in her story and platformed it as extensively as Network Ten and Lisa Wilkinson did? The stories of abuse suffered by Indigenous, Black and brown women, disabled, poor and queer women do not get as much air time or effort. In 2022, when then-Prime Minister Scott Morrison made an apology speech for the culture of sexual harassment and abuse in Parliament, Higgins was invited to attend alongside white survivor-advocates including Rachelle Miller and Chanel Contos. Asian women Dhanya Mani and Tessa Sullivan were excluded, despite also being survivor-advocates.
The exclusion of Mani was particularly galling, as she had been campaigning to end the harassment of women in politics since 2018. She tweeted at the time of the apology speech: “This feminist milestone is built on the unpaid labour of WOC survivor advocates like myself and Tessa Sullivan. The media is erasing us from our own story, to centre white women like Chanel Contos or Saxon [Mullins], who – unlike Tessa and I – aren’t even former staffers/politicians.”
Then there's the inequity media create when they decide which women matter. Stories of white, cisgender, straight women are so magnified, they are all we see. The media enables a white monopoly over access to funding/opportunities – thus perpetuating a white feminist agenda. /9
— Dhanya Mani (@dhanyajmani) April 6, 2024
Even with these factors working in her favour Higgins could not meet the impossible ‘perfect victim’ standard, putting her through years of invasive public scrutiny. Pursuing justice cost her career, her health and forced her to leave the country. Had she not been white, cis and educated, the attention and empathy afforded her would have been even less. These privileges built Higgins a large-enough platform to secure some paid opportunities (alongside her settlement payment from the government) to support her throughout this whole harrowing ordeal and help her start a new life abroad.
None of this should be read as criticism of Higgins or undermining what she’s been through. But the same circumstances are not available to victims of marginalised and vulnerable identities, which is why the ‘public vindication’ route can’t be considered a viable path to justice at all.
The same applies in reverse to Lehrmann. Despite being a cis, straight, conservative man in the circles of genuinely powerful people, he’s just unlikeable. We’re kidding ourselves if we pretend that did not play a role in how willing people (in politics, the media and the public) were to believe that he was a rapist. Being arrogant and unattractive does not make a man an abuser, even though in this case all three boxes are ticked.
Trying to get the same kind of justice against a man who has real power or popularity – again, whether that’s in your community or on the national stage – will be much more difficult. Former NRL champion Jarryd Hayne was criminally convicted of rape, is currently in prison… and still people doubt his victim’s story. This year, he will appeal the conviction for the second time. Questions will always hang in the air over Craig McLachlan and Christian Porter, who also pursued and abandoned defamation lawsuits for media reports on allegations about them. Russell Brand has been accused of sexual harassment, abuse and assault by multiple women (some very famous, and at least one child) since 2006. While there some legal action has finally begun in the aftermath of last year’s Channel 4 investigation into Brand’s behaviour, he’s enjoyed a lucrative career for the past 20 years.
The collective relief felt when Justice Lee said “Mr Lehrmann raped Ms Higgins” is not because the verdict indicates a turning point for justice, but because the alternative would make Australia a more hostile, dangerous and bleak environment for survivors and women in general. It is good and important that Justice Lee used his judgement to clarify and dispel myths about how survivors should act, with advocates praising his trauma-informed approach. Until that same level of attention and care is available to marginalised and vulnerable survivors in their pursuit of justice, whatever form that may take, the work is not done.
Smart people read more:
Appalling rape myth Bruce Lehrmann relied on to try to win – News.com.au
How do we make the justice system better for victims? This report offers some solutions – ABC
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