As Bruce Lehrmann’s contentious rape defamation trial of TEN and The Project’s Lisa Wilkinson enters its final week, the whole subject of sexual assault allegations and the law are in the spotlight.
Five elderly women in 2019 were able to convince a NSW jury – just on their say-so – that a half a century earlier, a man whose character references would make a pope proud had abused them physically and sexually when they were teenagers. That man was 80 when he was convicted and sentenced to 20 years jail.
During another recent rape trial, the complainant’s history of accusing men of rape in four similar circumstances to the man on trial was largely not allowed into evidence due to section 294CB of the Evidence Act in NSW, which forbids tendency evidence that goes to a complainant’s sexual history from being placed before a jury. (The accused has no such protection from tendency evidence.)
Unlike in other states, the NSW legislation has no exception provision. NSW District Court Judge Robert Newlinds SC has echoed other judges in saying there was “a serious need for law reform in this regard”. He was quoted in The Australian (December 16/17, 2023) “I do think that the trial was unfair because the applicant was not able to put before the jury the true history of the complainant’s complaints thus putting into context all of her evidence and the circumstances of her conduct before the jury,” the judge said.
“if the jury had known”
“If the jury had known the full picture of the complainant’s history of accusing men of rape in similar circumstances, the time of deliberation would have been measured in minutes. Knowing what I know now, I have concluded that it was not possible for the applicant to have a fair trial without the introduction of the evidence of those other complaints.”
The man spent eight months in prison before eventually being granted bail and then acquitted by a jury on December 4, 2023.
Writing about the consequential defamation trial under way in which Bruce Lehrmann is suing Network TEN and Lisa Wilkinson of The Project, lawyer columnist Janet Albrechtsen stated (The Australian, December 16/17, 2023): “The outcome of this trial is an opportunity, in this chaotic #MeToo age, to be reminded of what good journalism looks like in he said-she said stories where lives can be wrecked if an allegation of rape is untrue – or unprovable.
“When Higgins went to the media ahead of formalising a police complaint, her story turned into a media juggernaut. Many journalists appeared uninterested in learning if there was another side to the story. Even as evidence has emerged of inconsistencies in Higgins’s version, some journalists still are uninterested.”
Noted Albrechtsen, “Matthew Richardson SC (Lehrmann’s barrister) had no success extracting a concession from Wilkinson that by applauding Higgins’s bravery in her televised Logies speech – just eight days out from a criminal trial – people would have understood that the journalist believed Higgins’s unproven allegation. Richardson was right of course given the criminal trial was delayed for three months, with ACT Supreme Court Chief Justice Lucy McCallum castigating the speech for prejudicing a fair trial.
“But Wilkinson wouldn’t have a bar of the bleeding obvious, saying she was simply celebrating Higgins’s courage. Justice Michael Lee stepped in: “Would you accept, Ms Wilkinson, that a woman would not be showing unwavering courage if she made a false allegation of rape?”
“Sorry, your honour, I’ve got to think about that question.”
When Lee repeated the question, Wilkinson said: “Yes, I accept that.”
“Right,” continued Lee. “Well, doesn’t it follow that if you say that someone is showing unwavering courage, it means they’re making a true allegation of rape against a guilty man?”
“Yes,” she instantly agreed. This could be seen in hindsight as one of the most crucial exchanges in the trial when the judge considers the questions of defamation as well as qualified privilege.
suspicions, allegations v proven facts
Because the court will take into account the extent to which The Project interview distinguished between “suspicions, allegations and proven facts”, the reasons for the judgement will be significant – whatever the outcome.
False rape claims have a long history, #metoo notwithstanding. In his ‘An International Timeline of False Rape Allegations 1674 – 2015’, Alexander Barton compiles and annotates 350 years of examples.
Women who make false rape allegations should be publicly condemned by honest women for doing great damage to real victims and to women overall – and betraying the good intentions of the #MeToo movement. And the legal process. If made under oath, it is perjury.