When prosecution isn't in the public interest

ACT Director of Public Prosecutions (DPP) Shane Drumgold today announced^[1] that the charges against Bruce Lehrmann, the man accused of raping Brittany Higgins at Parliament House in 2019, have been withdrawn.

An earlier jury had been dismissed resulting in a mistrial, after an academic research paper relating to sexual assault was found in the jury room^[2]. Jurors are forbidden from doing their own research, as each case must be decided only on the evidence presented in court. A retrial had been ordered by the court to begin in February.

Decisions to prosecute

There are two tests^[3] the DPP must consider in determining whether or not to prosecute a case.

First, based on the evidence, are there reasonable prospects of conviction? In the Lehrmann case, the DPP has determined - and maintains - there are reasonable prospects for a conviction for the charge of sexual intercourse without consent - an offence other states call rape.

If this first test is met, the DPP must then determine whether proceeding with prosecution is in the public interest. It is this second test the DPP referred to when announcing the decision not to proceed with the retrial.

This “public interest test” is complex, and there are countless factors to be considered in making a determination. It is, for example, certainly in the public interest to pursue sexual offences, given the prevalence of sexual violence^[4] in the community.

However, this cannot be the only basis on which the decision is made. The DPP specifically referred to a section of the ACT Prosecution Policy^[5] (which outlines these tests) that states consideration should be given to “the actual or potential harm occasioned to any person as a result of the alleged offence”. He continued that this required him to consider the harm that could be caused to a survivor in pursuing prosecution.

Speaking specifically about Brittany Higgins, he said he had received independent evidence from two medical professionals, which made it clear the “ongoing trauma associated with this prosecution presents a significant and unacceptable risk to the life of the complainant”.

The risk to Higgins’ life means prosecution is not in the public interest.

Courtroom trauma

This decision would not have been made lightly, and almost certainly, would have been made in consultation with Higgins. Her friend released a statement on her behalf calling the last few years “difficult and unrelenting^[6]”. Higgins is seeking mental health treatment in hospital.

Today’s decision brings into public view the effect on complainants of reporting and pursuing sexual violence cases. The justice system caused more harm to a person who was reporting a crime within their rights.

During the first trial, the defence consistently shifted focus away from the actions of the accused, onto those of Higgins - a typical tactic in rape trials. The prosecution, for its part, encouraged the jury to centre its attention on Lehrmann – on the inconsistencies in his own statements and whether he was reckless to the issue of consent.

This is not new. Decades of research^[7] confirms victim-survivors experience the justice system as retraumatising. This is, at least in part, because of the role rape myths play in criminal rape trials.

Rape myths^[8] refer to widely held, hard-to-change and incorrect views about rape, survivors, and those who commit the crime. They inform society’s response to sexual violence – including that of the criminal justice system.

Victim-survivors are asked about what they did to resist^[9] an assault, whether they flirted^[10] with the accused, drank alcohol^[11], had previously consented^[12] to sex with the accused or another person, or whether they might have a “motive” to lie^[13] about rape.

This is exactly what law reform is focused on changing, including through the introduction of affirmative consent^[14] standards that require active communication of willingness to engage in a sexual act.

Read more: NSW adopts affirmative consent in sexual assault laws. What does this mean?^[15]

But this questioning is designed to encourage the jury to draw on rape myths, including about the truthfulness of rape allegations, based on the premise that such allegations are easily made and difficult to defend.

In reality, the opposite is true – most people who experience rape never report^[16] to the police. And for those who do, convictions are rare^[17].

In effect, these trial practices put the complainant on trial, and we certainly saw this happen to Higgins^[18].

Trial by media

For Higgins, the experience extended far beyond the courtroom, to a “trial by media”.

Over the course of the trial, including multiple days of intrusive cross-examination about her every action in the days, weeks and months before and after the night in question, the media relentlessly reported on her every word^[19]. And, of course, photographers were on hand to capture a snap of her as she left each evening.

The media focus was on Higgins. Defence assertions likening Higgins to a “con artist”, calling her “unreliable”, and statements characterising her evidence as “lies” have been featured across news headlines. But statements by legal counsel are not evidence, nor are the questions put to any witness during a trial. Yet they were repeated in the media, often uncritically.

This type of reporting lends legitimacy to rape myths, particularly the notion that a rape trial is “her word against his”. This isn’t true in a case that started with a witness list of 58 names.

This is also hardly in line with the principles of due process. For Lehrmann, inappropriate media reporting, prompted by Lisa Wilkinson’s ill-considered Logies acceptance speech^[20] and equally ill-advised reporting of the speech in the days that followed, threatened his right to the presumption of innocence. This forced a delay^[21] of the trial to protect his rights.

For Higgins though, apparently no such rights apply. Instead, a criminal justice system that is not fit for purpose and a media storm more interested in the scandal, both bolstered by a community that readily consumed and regurgitated sexist victim-blaming narratives, saw the charges dropped.

Read more: Why was the Brittany Higgins trial delayed, and what is 'contempt of court'? A legal expert's view on the Lisa Wilkinson saga^[22]

Impact on survivors

Ignoring sexual violence in the media isn’t the answer - change rarely comes out of darkness. But we do need to respect the dignity and privacy of victim-survivors.

The spectacle of the Lehrmann case doesn’t just affect those involved. The impacts will be felt far beyond.

For the one in five women and one in 20 men^[23] in Australia who experience sexual violence in their lifetime, this view into the criminal justice system and into the reporting of sexual violence has sent a clear message – in Australia, it’s the survivors on trial.

Read more: Making change, making history, making noise: Brittany Higgins and Grace Tame at the National Press Club^[24]

References

1. ^{^} announced (www.theage.com.au)
2. ^{^} found in the jury room (www.theguardian.com)
3. ^{^} two tests (www.dpp.act.gov.au)
4. ^{^} prevalence of sexual violence (www.abs.gov.au)
5. ^{^} ACT Prosecution Policy (www.dpp.act.gov.au)
6. ^{^} difficult and unrelenting (www.news.com.au)
7. ^{^} Decades of research (research-repository.griffith.edu.au)
8. ^{^} Rape myths (www.tandfonline.com)
9. ^{^} resist (academic.oup.com)
10. ^{^} flirted (journals.sagepub.com)
11. ^{^} alcohol (journals.sagepub.com)
12. ^{^} previously consented (search.informit.org)
13. ^{^} lie (academic.oup.com)
14. ^{^} affirmative consent (theconversation.com)
15. ^{^} NSW adopts affirmative consent in sexual assault laws. What does this mean? (theconversation.com)
16. ^{^} never report (www.aihw.gov.au)
17. ^{^} rare (www.journals.uchicago.edu)
18. ^{^} we certainly saw this happen to Higgins (www.smh.com.au)
19. ^{^} media relentlessly reported on her every word (7news.com.au)
20. ^{^} Logies acceptance speech (theconversation.com)
21. ^{^} delay (www.abc.net.au)
22. ^{^} Why was the Brittany Higgins trial delayed, and what is 'contempt of court'? A legal expert's view on the Lisa Wilkinson saga (theconversation.com)
23. ^{^} one in five women and one in 20 men (www.abs.gov.au)
24. ^{^} Making change, making history, making noise: Brittany Higgins and Grace Tame at the National Press Club (theconversation.com)