The Shifting Legal Landscape of Consent and Defamation: Lessons from the Lehrmann-Higgins Case
The line between recklessness and knowledge of a lack of consent is becoming dangerously blurred, and the recent defamation appeal surrounding Brittany Higgins’ allegations against Bruce Lehrmann is forcing courts – and the public – to confront uncomfortable truths. A staggering 90% of sexual assault cases go unreported, often due to fears of disbelief or re-traumatization, and this case highlights how legal definitions of consent, particularly in the context of intoxication, are being intensely scrutinized. The implications extend far beyond this single case, potentially reshaping how sexual assault allegations are investigated, prosecuted, and reported, and fundamentally altering the risk calculus for media outlets.
The Core of the Debate: Recklessness vs. Knowledge
Justice Colvin’s questioning – “I’m not sure he found a non-violent rape, and I’m not sure … that’s a concept that I understand” – encapsulates the central difficulty. The initial finding that Lehrmann was “hell-bent on having sex” but didn’t necessarily *know* Higgins didn’t consent hinges on a distinction between recklessness and actual knowledge. This isn’t simply a legal technicality; it’s a reflection of the complex realities of sexual encounters and the challenges of proving intent. The appeal court is now considering whether Lehrmann’s awareness of Higgins’ intoxication should be interpreted as implicit knowledge of her inability to consent. This raises a critical question: at what point does disregard for someone’s capacity to consent become equivalent to knowing consent is absent?
Defamation and the ‘Truth Defence’: A High-Stakes Gamble
The defamation case brought by Lehrmann against Ten and Wilkinson centered on an interview broadcast on The Project. The court found the interview conveyed the imputation that Lehrmann was a rapist, but crucially, Ten and Wilkinson successfully argued this was true. However, the appeal hinges on whether that ‘truth defence’ will be upheld. If not, Wilkinson’s argument rests on ‘qualified privilege’ – demonstrating reasonable publication of the claim. As Chrysanthou, representing Wilkinson, argued, there’s a “spectrum of culpability” for publishers, and the role of each party involved – Wilkinson, the producers, and the network – must be assessed individually. This highlights a growing concern within media organizations: the increasing legal risks associated with reporting on sensitive allegations, even when pursuing legitimate public interest reporting.
The Burden on Publishers and the Role of Due Diligence
The case underscores the immense burden placed on media outlets to conduct thorough due diligence when reporting on allegations of sexual assault. Simply relying on sources, even credible ones, is no longer sufficient. The court’s scrutiny of Ten’s actions – or lack thereof – demonstrates the need for robust fact-checking, independent verification, and a careful consideration of potential legal ramifications. This is particularly relevant in the age of rapid news cycles and the pressure to be first to report. Reuters reports a significant rise in defamation cases against media organizations, signaling a more litigious environment.
The Implications of ‘Astonishing Submissions’ and Shifting Narratives
Dr. Collins’ description of Burrows’ submission as “astonishing” – the suggestion that Lehrmann might have conceded to sexual contact under different questioning – is a pivotal moment. It suggests a potential willingness to admit to the act itself, while maintaining a claim of consent. This highlights the inherent difficulty in obtaining clear admissions in cases involving sexual assault, and the strategic maneuvering that often occurs during legal proceedings. The fact that Lehrmann consistently denied any sexual contact at all raises questions about the integrity of his initial statements and the potential for shifting narratives.
Beyond the Courtroom: A Broader Cultural Shift
The Lehrmann-Higgins case isn’t just about legal definitions; it’s a reflection of a broader cultural reckoning with issues of consent, sexual assault, and the power dynamics that contribute to these harms. The aborted criminal trial, due to juror misconduct, and the subsequent dropping of charges due to concerns about Higgins’ mental health, underscore the systemic challenges within the criminal justice system. The case has fueled public debate about the importance of believing survivors, the need for comprehensive sex education, and the responsibility of institutions to create safe environments.
The evolving legal standards surrounding consent, as demonstrated in this case, will likely lead to increased scrutiny of behavior surrounding sexual encounters, even in the absence of overt force. Media organizations will face heightened pressure to exercise caution and prioritize accuracy when reporting on allegations of sexual assault, and individuals will need to be more mindful of their actions and the potential consequences. What remains to be seen is whether this case will ultimately lead to a more just and equitable system for survivors, or simply further entrench the existing barriers to accountability.
What are your thoughts on the balance between freedom of the press and the protection of individual reputation in cases involving sensitive allegations? Share your perspective in the comments below!
