The judge said his findings were to a civil standard of proof—and not a criminal one.
Justice Michael Lee has found that ex-political staffer Bruce Lehrmann raped his colleague Brittany Higgins, as part of his findings in Mr. Lehrmann’s defamation action against Channel 10.
The judge is still delivering the judgement, and more will follow.
“The first thing to be said about Ms. Higgins’ account is it involves a grave allegation,” Justice Lee said.
He said he found Ms. Higgins’ account more believable than Mr. Lehrmann’s, but there is a “subtle tension” between her varying accounts of the alleged rape.
Justice Lee found that Bruce Lehrmann had sex with Brittany Higgins at Parliament House in March 2019.
“I’m convinced ... that sexual intercourse did take place and it took place with Mr. Lehrmann on top of her on the couch in the minister’s office,” he said.
He is not satisfied that Higgins said “no” or “stop” repeatedly, but he believes she was passive “like a log,” and that afterwards she passed into a deep sleep.
Justice Lee said he was satisfied that Ms. Higgins did not consent to sex with Mr. Lehrmann, who knew she was drunk, saw her falling over and saw her drinking.
“My conclusion on rape: Mr. Lehrmann raped Ms. Higgins,” he said.
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However, the judge emphasised that his findings were to a civil law standard of proof, and not a criminal one.
“I hasten to add these findings are on the balance of probabilities. These findings should not be misconstrued or mischaracterised.”
He said that although he was not satisfied “there was a clear verbal protest being made by Ms Higgins,” the suggestion some form of active resistance was required to determine consent was misguided.
“I’m satisfied that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to consent,” Justice Lee said.
“In his pursuit of gratification, he did not care one way or the other whether Ms. Higgin’s understood or agreed with what was going on.”
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