It’s tempting to view the treatment of Brittany Higgins, both within and outside the courts, through the prism of a failed criminal justice system — one that Michael Bradley, who has extensive experience representing survivors, calls “medieval“.
But it’s also useful to view it as part of a single continuum of the exercise of power.
From the moment Higgins went public with her allegations of sexual assault and subsequent treatment by government ministers and staff, she was a direct challenge to the powerful — a challenge that became greater as she, along with a number of other brave women from a variety of backgrounds and for differing causes, became symbols and leaders of a groundswell of anger about gender and workplace issues.
But that deep-seated anger — the fury and dismay of women, and many men, sick of pervasive misogyny, of double standards, of justice systems that treat women and children as second-class citizens, of the casual use of power purely in the interests of privileged males — is no match for a system and institutions built and designed to protect the powerful.
Higgins’ treatment since she emerged in 2021 has been a reaction to the threat she posed, regardless of the merits of her allegations against Bruce Lehrmann, who maintains his innocence. A Coalition politician allegedly linked her drinking with her alleged rape, though he denies having done so. Senator Linda Reynolds, a senior minister and Higgins’ former employer, called her a “lying cow”. The Prime Minister’s Office smeared her partner in background briefings. A sham review was established into who knew about the alleged assault.
That review became the subject of a prime ministerial lie to Parliament. Reynolds’ partner attended the trial, at which the minister was to give evidence, and Reynolds texted suggestions to defence lawyers for Lehrmann. After the director of public prosecutions discontinued the prosecution out of concern for Higgins’ health, an Australian Federal Police source leaked information to News Corp attempting to undermine the prosecution. Today News Corp has continued to try to do so.
That is, it’s not merely the criminal justice system that makes it almost impossible for women to have an allegation of sexual assault successfully prosecuted, or to endure any prosecution without being subjected to ferocious personal attack, but broader systems of power that will work to inflict exemplary punishment on women perceived as a threat.
The office of the prime minister. His department. Journalists and commentators. The AFP. The Coalition’s propaganda unit, News Corp. Coalition backbenchers and ministers.
Each of the perpetrators, from Phil Gaetjens through to Janet Albrechtsen and every politician, staffer, AFP officer and lawyer along the way, is fully culpable for their actions. But they are also part of a systemic response to a perceived threat.
Imagine what a different dynamic might have played out if Higgins had alleged she was assaulted by a staffer from another political party, or if she had alleged she’d been assaulted by a male who could be othered — a person of colour, a welfare recipient, an immigrant. But because she alleged she was sexually assaulted by a Liberal staffer, and Liberal ministers failed in their response because the story she offered discredited the political party in power at the time, she was the target of a systemic response.
Thus the anger at the failure of the criminal justice system to resolve her allegations — to the extent that the criminal justice system can ever resolve such things — and the anger at the behaviour of journalists, MPs and lawyers, is at risk of being misdirected purely at the individuals concerned, when they acted as part of a system of power that worked to protect itself from a threat.
Indigenous communities, and the families of the many hundreds of Indigenous victims of police homicide over decades, have learnt to see the persistent failure of any prosecution of a police officer for homicide as part of a broader system of racial oppression, a continuing legacy of colonialism and dispossession and the self-protective workings of a justice system of which police are an integral part, the failure of “Indigenous policy” devised and delivered by white policymakers and media racism.
Similarly, policymakers have only recently come to understand that domestic violence can only be better addressed through a systemic response that provides far greater support for victims, addresses the economic empowerment of women, focuses more effectively on perpetrators, and recognises embedded misogyny.
In both cases, the long history of justified outrage about individual incidents rarely leads to systemic change, even in the rare event an individual perpetrator is appropriately punished.
In the Higgins case, regardless of the truth of the allegations against Lehrmann, the systemic failings of the criminal justice system formed part of a much greater systemic response directed at punishing and destroying Higgins — one continuing even now.
And for all the anger about her treatment, there is nothing that would stop the same punishment being meted out to another woman perceived as a threat to the powerful.
The systems and networks that delivered it — unaccountable executive government, toxic relationships between a political party and a faux-media outlet, a justice system run by and for lawyers rather than the community — have deeply embedded misogyny within the community, police, courts and the political class.
I’m alarmed at he conflating of the issues surrounding the political response and the allegation of sexual assault. I’m not going to comment on what occurred at their workplace after the alleged assault. The complainant in this case went public via the media before formally making the complaint. That made the matter public, and involved a media very interested in conflating the issues of power in the corridors of power and the actual allegation of a crime. So much of the narrative then worked on the basis that the allegation was true, the use of words like “victim” assumed guilt on the part of the defendant. Speaking at rallies and at the National Press Club, further enforced the notion that the defendant is guilty.
All of this challenges the basis of our legal system, and our right, worth remembering that, our right to a presumption of innocence. I ask this question; what would you expect from the legal processes if you were accused of sexual assault? If you were accused of sexual assault would you rightly expect that you could test those allegations in a court of law? Would you expect that there will be a presumption of innocence? How would you feel if the case had been made public, in every possible way, on the basis that the person making the allegation is considered a “victim”? Before we rush to assume and condemn, let’s ask ourselves what we would expect from the legal system if we’d been accused of a crime?
I have no view as to the guilt or innocence of the accused. Simply put, how could I? On the basis of what? On the basis of what has been alleged only? The very idea in effect destroys our system of justice.
What I do see is the response of the mob. That the public mob subjectivity that dominates the manner in which this case has been portrayed. It has come close to overwhelming the objectivity of our legal system, and that is alarming. We need our legal system to be both impartial and seen to be impartial, we cannot have cases sullied by our perceptions of the parties involved, nor assumptions as to guilt made as the basis on which we determine such cases, otherwise the whole thing falls over. And then we have an even greater problem, something Zola tried to warn us about 120 years ago.
Well put.
yep superbly put.
Ah… mutually pleasuring each other again? What a surprise!
Well put.
You believe the legal system is impartial?????
Gullibility is it’s own reward…………………..
But he chose not to speak in court or answer questions. He has that right but if he was innocent he could have made his case but chose not to b
We all have the right to silence and silence cannot be used to infer someone’s guilt. that’s what the right to silence means. As a socially awkward person who wasn’t believed by ski field rescuers that i had dislocated shoulder, only to have to insist that they actually examine it, then having the same experience at the base hospital and being told that i was the calmest person they’ve ever seen with a dislocated shoulder, i would never, ever testify in a criminal trial.
Interesting.
Rape victims have the same problems being cross examined for days on end , no matter if they are socially awkward or not, knowing the whole while, their abuser is not going to have to go through the same ordeal, is probably getting off on hearing it all, is going to have the misogynists and flying monkeys out there bellowing “its just a ‘he said, she said” case, when it is clearly not…its only ever ‘ she said’ and the legal system doesn’t mind.
Its even called a ‘ justice’ system. Cute for a laugh I guess.
Certainly all the lads don’t mind. You can read them here for verification! The protesting muchly, the shouting, the gaslighting, the ridicule. Its all here. The same tactics are used in domestic violence.
So this is what a patriarchy looks like. The rules are made by men, for men.. Amen.
Exactly.
Doubtful that “J’Acquiesce” would be quite so resonant a best seller
As far as I’m aware, she did her best to keep it quiet at first. But enjoy your narrative.
So, our “impartial” legal system decides that 90 percent of women are liars and that 90 percent of men are just the victims of vindictive women…
Yeah..ok…
“I ask this question; what would you expect from the legal processes if you were accused of sexual assault?”
You seem to have forgotten a rather pertinent question which, if misogyny wasn’t blinding you quite so much, could have included::
I ask this question, what would you expect from the legal process if you were a VICTIM of sexual assault?”
“
Diversionary FAIL – mixing like & unlike.
Accusations are hot air, assault is real.
Logic is clearly not your strong point.
Assault is real? Doesn’t seem to be on this thread! Any woman who ‘speaks up’ gets told she is a liar, ‘just after money’ and whatever else the muchly protesting misogynists think, so I wonder when assault becomes real for you. Only when it happens to you, maybe?
So lets forget the worry of the original poster because he is more interested in himself, or any other male who hasn’t actually been assaulted at all, (as usual), What would you expect from the legal process if you were assaulted?
To repeat my last line, logic is clearly not your forte.
Nor linear thought.
So you not saying. I wonder why that would be. Not in your interest?
I guess most rapists only ever have linear thoughts. Often called a ‘ one track mind’.
Its great mine wanders freely and widely and takes in other perspectives, and doesn’t shore up this misogynstic system we call a democracy with a ‘justice’ system…which is code for protection racket to any rational mind.
You will never be raped. Women have to live with that possibility all the time, even as children.
Rape is a violent crime. No victim “asks for it,. End of.
Obviously missed the nuances of the case and the struggle to report in a politically fueled environment in which a naive young woman was seduced by a career in a Party in which she had great trust. It is difficult enough for a man or woman to report rape even by an unknown assailant let alone in a workplace and where career and livelihood far too frequently has to be terminated.
Great article Bernard, Despite the argument against this, (assumption of innocence) I really think that, if the victim is to be aggressively interrogated, then the alleged perpetrator should be as well. Also, the victim should be able to request a judge-only trial. The very fact that only a very small percentage of alleged rape cases are proven, shows something is very wrong with the justice system in this area.
The more women on a jury, the less likelihood of a guilty verdict in rape trials.
Wonder why that is?
That’s an urban myth.
For a scholarly assessment go to:
https://www.sciencedirect.com/science/article/abs/pii/S1756061614000482
Also bear in mind that only a few percent of rapes are even reported, and an even smaller percentage go to trial.
Ask yourself why.
I agree. The fact not one lawmaker has ever addressed this, speaks volumes. The accused can still have his presumption of innocence. The rest of a trial needs to be equal. i read the reasons why the accused is not forced to testify and be cross examined for days on end, and was sickened…as if the same doesn’t apply to the victim/accuser.
The other issue that struck me was why is there a presumption that the victim is lying? It goes against all the research, yet that is almost all we heard from the shriekers and barristers. Imagine if we had a law that the victim is to have the presumption of truthfulness or honesty..
Given that until modern times, rape was a property offence against the owner – father, husband, brother – the question “…why is there a presumption that the victim is lying?” has ancient provenance, from Potiphar’s wife through Deuteronomy 22:24 and also sizable proportion of literature, cautionary stories, fables and parables.
Isn’t it wonderful the social advances that have been made?
Ack….don’t get me started LOL.
You’d have to come from a long way behind to start.
And how would you suggest we address this, Joe? A presumption of guilt perhaps? Just take the woman’s word for it? Our system is not perfect, perhaps. But don’t throw out the baby with the bathwater.
Probably ditch jurisprudence altogether and go with the Vibe of the day… or moment.
So much more satisfying for those who indulge in regular moral panics.
Why, thete are so many wonderful, moralising wowser, left-reactionary options, emem48!
* bring back public square floggings, as a means of beating the truth out guilty bastards;
* public castration, ditto;
* appoint a State Guilt Astrologer, to determine the truth of he said/she said allegations via skilful assessment of the heavens;
* State Chicken Gut Sifter, ditto;
* formal ‘dunking’ ceremonies in Lake Burly Griffen – if the accused drowns, he was innocent, yay!
* the ABC could host a nightly show (‘The Curtain-Twitchers Big Guilty Bastard Roast’), hosted by Louise Milligan, with St Grace, Lisa Wilkinson, and a rotating National Press Club guest as expert panellists, and music by Tim Minchin. Clickrate heaven, Ita!
The list goes on! So many better ways to do justice…
I guess for the same reason that if you’d been bashed and robbed you wouldn’t be accused of lying about it.
Women don’t make accusations of rape flippantly.
And don’t forget the AFP gave the defence lawyers protected evidence including medical and psychological reports of Ms Higgins.
On a USB stick ! How does that happen “accidentally” ?
Nice guys. Men we can trust.
Assuming much?
Pretty sure that there are AFP officers of the female persuasion.
With only 20 percent of AFP officers being women then I’d say it’s a reasonable guess.
In my opinion, the AFP has become politicised and become an arm of the Liberal party and has been used as such, the raids on the ABC and journalists were a prime examples
And Mick Keelty shopping the Bali Nine to the Indonesians, whom he knew would certainly sentence some of them to death. Drug dealers’ deserts in the eyes of “conservatives”.
Apparently the guy who financed that drug run won lotto about the time of the arrests and gave up drug dealing. Lots of people, including the cops, know who he is. Still free as a bird. Amazing.
It’s not the alleged offence, nor the perceived qualities of the complainant or the accused at issue, it’s our justice system. If there’s anywhere anger should be directed it should be towards the juror who ignored the judge’s directions. Otherwise tear up the presumption of innocence, rules of evidence and so on and move back to an inquisitorial system or dunking people in ponds.
Anyone remember the corrupted trial of Bjelke Petersen.
Yes. That was a disgrace of the highest magnitude. Strongly suggest that any reader of Crikey watches ‘Joh’s Jury’.
The rule is that the male is guilty until proven innocent.
We all ‘know’ he got away with it………..right ?
Most of them do get away with it Check out the stats.The question is: how do they manage it more than 9 times out 10? Is it the legal system itself? Many are suggesting it is.
Mostly, sexual activity occurs in private between two people. It is difficult to avoid the “he said/she said” scenario. And despite wild and angry protestations to the contrary, it often (not always, but often) takes two to tango, as the saying goes. There is also some fundamental difference, generally speaking, in the way males and females see sex.
It takes two to tango? I suppose you reckon the victim of a mugging is as responsible as the attacker… it takes 2 to “tango” right?
How in the fiery depths of Hades do you know how males and females see sex differently? Presumably you belong to only one of the sexes mentioned, regardless of your gender role in society therefore you only have one perspective. So, males see sex differently? “boys will be boys” eh? Or maybe “Look what you made me do”…
Isn’t sex a matter of negotiation rather than of conquest?
Did you mean ‘negotiable affection’ – $50 short time.
Or, given the recent ‘stealthing’ legislation, being more sensible in choice of partner?
“More sensible choice of partner? Tell that to all the divorcees…check out the stats. They don’t leave much choice!
It’s a long time after the initial post, but I’ll try anyway. I know that males and females see sex differently because of lived experience. I’m 72 yo and have been married 3 times and had several “girlfriends’ in between. And by “two to tango” I used a very well known and accepted metaphor to explain that a ‘he said/she said’ scenario can be viewed quite differently by the two people involved. There is a vast difference between a “mugging” and a date where two people spend time together, perhaps eating and drinking and sharing other social niceties. To suggest a similarity with a mugging is being totally disingenuous. But I’m sure you know that. I’ve also spent a lifetime reading about and studying the (obvious) differences between men and women. And yes, surprise. surprise, they ARE very different. “Men Are From Mars, Women Are From Venus” was not written because the author found no diffences between the sexes. It is not a hitherto unknown concept.
You don’t seem to see the difference between a date and a rape..its rape when the guy decides it is…nothing to do with 2 tangoing.
There are married predators out there who are doing godawful things to women that the wife knows nothing about…she doesnt know, but he does, and thats what makes it rape…
Direct anger at the jury system itself. That juror likely of the mould of the now uneducated (oh so clever) that they can create their own `evidence’. We’ll see more of this. Or next time you go to a doctor, ask for a decision making group of 12 nobodies to be in attendance.
The judge should have discharged the juror and continued with the trial. Pity the actions of the juror were not subject to a criminal charge.
Agree on the criminal charge. But the concern was that the juror had discussed the rogue documents with the other jurors, thereby contaminating their deliberations.
When you have the then Prime Minister, as well as the LOTO at the time, both publicity accepting the allegation as fact, thereby undermining the legal tenets of the presumption of innocence and the right to a fair trial, the case was always doomed.
The legal system has been diminished by the entire debacle, when such prejudicial public statements that pronounce the guilt of the accused, prior to a court hearing. While the accused’s solicitors request for a permanent stay was denied, at the very least, there needed to be a suppression order issued from the time charges were eventually laid.
No winners here, except the lawyers…
I don’t recall anything Morrison said that could in any way suggest he accepted the allegation as being fact. His early description of Higgins as a “silly little girl” in fact suggests the opposite. Coincidentally, his comment was almost never reported on again after he made it.
On 8 February, 2021, in The House of Representatives, Morrison stated
‘I am sorry. We are sorry. I’m sorry for the terrible things that took place here. And the place that should have been a place of safety and contribution turned out to be a nightmare. But I’m sorry for far more than that, for all those who came before Ms Higgins and endured the same’.
Such ill-advised comments, prior to a trial, infer the guilt of the defendant and the acceptance as truth of the complaint’s accusation. This and the press release from Albanese put the prospect of a fair trial seriously at risk.
When the politics of the day override legal precedents, we all lose.
Maybe the ultimate goal of Morrison’s pre-trial parliamentary apology was to torpedo the trial before it even started in an attempt to save the government any embarrassment.
Wouldn’t put anything past the conniving grub.
Yeah, well, here’s what Albo said the same day, same place…why, right after ‘grubby’ ScoMo:
‘…I particularly pay tribute to the courage of Brittany Higgins, who’s with us today. You have torn through a silence that has acted as the life support system for the most odious of status quos. To describe your experiences is to relive them. I say to everyone who took part: that took a level of courage that you should never have needed to show, but you did, and we thank you for it…’
But, you know. He’s not LNP so let’s politely pretend that’s not on the public record too, eh?
The undergrad-conspiracy partisanship of you soft pap progs is often quite, quite hilarious. 🙂
And…what, wait a minute! Here’s Senator Waters, the very next day:
‘…It has been nearly 12 months since Brittany Higgins bravely shared her experience, peeling back the curtains on the callous disregard that so many women and people have endured for so long…etc etc…’
Oh noes! The turncoat Greens wuz wot torpedoed the trial, to protect…erm…to protect….erm…
etc. etc. etc. Really, grow TF up, Crikey. (Go and read a bit of Hansard, for starters.)
Imagine how they’d tie themselves in knots if either party were transgendered.
Grow up? Take your own advice. Plus, I see no prejudgement in the comment by the senator… but there you go. If you cannot understand that then it’s no wonder you have trouble understanding the brutal court process.
On another matter/point of principle, I recall the DPM’s ‘me3‘ comments during the Assange pile-on – ‘high-tek terrorist’,’criminal’, ‘traitor’ kindathangy – as did Gillard, his sometime PM, just butt(er)ing up to the Hegemon.
Oddly, no matter how I search, google comes up with squat.
,
We’ve been hostage to at least a decade of extraordinarily regressive, multipartisan lynch mob hysteria, for sure. Prolly since 9/11, actually…
So recent?
Young chappies such as yourself may not remember the Red Scares, the Yellow Peril, Domino Effect, Missile Gap etc ad nauseam.
Nothing new under the sun when a mob of useful idiots is required – easily whipped up, much less easily disbanded.
Young chap? Keep that kind of abuse coming…
All true enough, but there was a thick, stabilizing cord of cross-party political liberalism running through that entire era, too. Wasn’t there? I mean, grown-ups in all the main parties who embraced rule of law, ministerial accountability, basic HR, basic presumptions of process and rationality…even when it ran against their partisan advantage?
Or am I imagining a Golden Past…?
That was then, this is now and I have no desire to be part of the looming future.
To quote that great Sage for the Age, Darryl Kerrigan, “Tell him he’s dreaming“.
the apologists for liberal party corruption also need calling out, it`s the acceptance of the ideologically fixated b
rainwashed supporters that encourage the perpetrators to continue their behavior in the knowledge there will be no penalty for it from their rusted-on base, it’s the old favorite of the base, oh everybody does it, the same excuse with climate change from the deniers.
Did you mean to post this all-purpose, no-point rant here or was it meant for ‘another place’?
I’m glad you find the subject of sexual assault hilarious. Maybe that explains your comments.
You must be happy in your alternative world where women are lining up to humiliate and embarrass themselves in court in order to make false accusations.
Someone making a claim (about anything) two years post facto, having expected advantage in the meantime, is rightly suspect, when thwarted.
Woopsadaisy, the lad is feeling the pressure. Poor Jack. Lets feel sorry for Jack because he is just a poor, misunderstood boy.
Rape is OK so long as the victim waits a couple of years before reporting it. Okey dokey.