I should note that I was sceptical of Higgins' claims, mainly because of her ambitious publicity-seeking years afterwards; I projected that behaviour backwards to her original claim. But His Honour did a very thorough job of walking us through the evidence, and so I became convinced that Lehrmann raped her.
As to your point about "I am a good person, therefore I must sue" - Rory Miller who writes on violence a lot describes six levels of violence,
with each person tending to stay at one level, have contempt for people at a lower level, and be fearful and uncomprehending of people at a higher level.
Most of us will imagine that what is labelled "violent" crime can only include assaultive and murderous levels, or at least aggressive (as with threats and incitement). But I would suggest that Lehrmann's behaviour in plying a woman with multiple drinks, feeling her up, taking her to a place without others around and then raping her when she was either unconscious or barely so represents someone on the "manipulative" level.
The thing about the manipulative level is that the person can more readily convince themselves that they were in fact not doing harm - they can manipulate themselves, too. The person who caves someone's skull in with a claw hammer may believe they did the right or necessary thing, but they cannot deny they did harm. The manipulative person will be better at self-delusion.
Thank you for this clear and succinct explanation of a case that has been so abominably noisy elsewhere. It also helped me reconcile other thoughts that have troubled me about criminal cases and jury decisions.
Excellent read, Katy. First there was Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, now this one. Is Australia's reputation for publisher-hostile defamation torts undergoing a correction? Or are these just isolated cases of alpha-males wielding the tort with unwise abandon?
I wonder if it’s a little of both. I find both the Roberts-Smith case and this one unfathomable, to be honest - only able to be explained by hubris. I do think the defences haven’t quite operated properly previously - maybe there is a shift?
" ... as it transpires that both Lehrmann and Higgins were very poor witnesses, and the facts had long been caught up in the fog of politics."
I think Lee's reconstruction of the facts is admirable -- the judgment makes for incredibly interesting reading. A masterclass that I am still in the process of digesting. I do think Lee's judgement makes it very clear that there are significant differences in the credibility of these two witnesses. He gave Lehrmann quite the brutal shellacking and took Higgins mostly to task about her questionable and seemingly confounded Reynolds - Brown related narrative. I found that part quite intriguing and agree that we have not seen the last in this sordid saga.
What I do wonder is why Lehrmann was stupid enough to go this route. He must have known he would be a poor witness etc. The most reasonable explanation then is that he, and his financiers and handlers, thought that Higgins would not show up. Quite the miscalculation!
Agreed, they are significantly different. Perhaps I should have emphasised that the really important part is that Higgins’ account of the actual incident is vastly more credible by many multiples—particularly in light of the contemporaneous evidence—even though her later evidence of political cover-ups was found to be baseless.
In relation to your last paragraph, I would like a rule that politicians can only be eligible for office, _including_ cabinet Secretary type positions, if they are at least 35 with at least 10 years experience earning a private sector salary or running their own business.
And then they have to retire, from elected office at least, at say 60.
My main hope would be that many who intend to go down that route change their minds.
Seriously, I agree. The problem we have currently is that many people who want to become politicians - that’s all they want to be, and all they’ve ever wanted to be. They don’t have any experience of how everyone else lives. And the whole point of being a representative of the people is that you must know how others live. In some ways, I quite like the idea of a random ballot of people to represent us.
I hate the idea because I'm an elitist snob, but then I think "how could it be worse?"
The issue is that whilst this might get rid of the worst grifters and most of the greens, it would leave you with almost none of the potentially transformational talents (Hawke, Keating and Howard, for example, in an Australian context).
So the question is whether our odds are better with random selection, and I think they can be made better if one randomly selects 10 (or 5, but not too many) candidates for each seat 6 months before the vote, there is a "first round" 1 month later, and those who get more than X% then fight it out over the next 5 months
A good analysis.
I should note that I was sceptical of Higgins' claims, mainly because of her ambitious publicity-seeking years afterwards; I projected that behaviour backwards to her original claim. But His Honour did a very thorough job of walking us through the evidence, and so I became convinced that Lehrmann raped her.
As to your point about "I am a good person, therefore I must sue" - Rory Miller who writes on violence a lot describes six levels of violence,
nice - manipulative - assertive - aggressive - assaultive - murderous
with each person tending to stay at one level, have contempt for people at a lower level, and be fearful and uncomprehending of people at a higher level.
Most of us will imagine that what is labelled "violent" crime can only include assaultive and murderous levels, or at least aggressive (as with threats and incitement). But I would suggest that Lehrmann's behaviour in plying a woman with multiple drinks, feeling her up, taking her to a place without others around and then raping her when she was either unconscious or barely so represents someone on the "manipulative" level.
The thing about the manipulative level is that the person can more readily convince themselves that they were in fact not doing harm - they can manipulate themselves, too. The person who caves someone's skull in with a claw hammer may believe they did the right or necessary thing, but they cannot deny they did harm. The manipulative person will be better at self-delusion.
Very good thoughts on how someone could bring a claim in those circumstances.
Thank you for this clear and succinct explanation of a case that has been so abominably noisy elsewhere. It also helped me reconcile other thoughts that have troubled me about criminal cases and jury decisions.
Thank you. I ran this past my husband (who is not a lawyer) and he said it helped him understand various issues much better as well.
Excellent read, Katy. First there was Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, now this one. Is Australia's reputation for publisher-hostile defamation torts undergoing a correction? Or are these just isolated cases of alpha-males wielding the tort with unwise abandon?
I wonder if it’s a little of both. I find both the Roberts-Smith case and this one unfathomable, to be honest - only able to be explained by hubris. I do think the defences haven’t quite operated properly previously - maybe there is a shift?
I agree with all you say here, except maybe
" ... as it transpires that both Lehrmann and Higgins were very poor witnesses, and the facts had long been caught up in the fog of politics."
I think Lee's reconstruction of the facts is admirable -- the judgment makes for incredibly interesting reading. A masterclass that I am still in the process of digesting. I do think Lee's judgement makes it very clear that there are significant differences in the credibility of these two witnesses. He gave Lehrmann quite the brutal shellacking and took Higgins mostly to task about her questionable and seemingly confounded Reynolds - Brown related narrative. I found that part quite intriguing and agree that we have not seen the last in this sordid saga.
What I do wonder is why Lehrmann was stupid enough to go this route. He must have known he would be a poor witness etc. The most reasonable explanation then is that he, and his financiers and handlers, thought that Higgins would not show up. Quite the miscalculation!
Agreed, they are significantly different. Perhaps I should have emphasised that the really important part is that Higgins’ account of the actual incident is vastly more credible by many multiples—particularly in light of the contemporaneous evidence—even though her later evidence of political cover-ups was found to be baseless.
In relation to your last paragraph, I would like a rule that politicians can only be eligible for office, _including_ cabinet Secretary type positions, if they are at least 35 with at least 10 years experience earning a private sector salary or running their own business.
And then they have to retire, from elected office at least, at say 60.
My main hope would be that many who intend to go down that route change their minds.
Seriously, I agree. The problem we have currently is that many people who want to become politicians - that’s all they want to be, and all they’ve ever wanted to be. They don’t have any experience of how everyone else lives. And the whole point of being a representative of the people is that you must know how others live. In some ways, I quite like the idea of a random ballot of people to represent us.
I hate the idea because I'm an elitist snob, but then I think "how could it be worse?"
The issue is that whilst this might get rid of the worst grifters and most of the greens, it would leave you with almost none of the potentially transformational talents (Hawke, Keating and Howard, for example, in an Australian context).
So the question is whether our odds are better with random selection, and I think they can be made better if one randomly selects 10 (or 5, but not too many) candidates for each seat 6 months before the vote, there is a "first round" 1 month later, and those who get more than X% then fight it out over the next 5 months