Sexual Assault Charge Brought Over Alleged Rape in Parliament House

by Sonia Hickey & Ugur Nedim
Parliament House Canberra

The man accused of sexually assaulting Brittany Higgins in Parliament House in 2019, has been named, and will face court later this year.

Former Liberal staffer Bruce Lehrmann has been charged in the nation’s capital with one count of sexual intercourse without consent, a criminal offence punishable there by up to 12 years’ imprisonment.

Mr Lehrmann’s criminal defence lawyer has told the media his client “absolutely and unequivocally denies that any form of sexual activity took place whatsoever,” and will defend the charges.

Brittany Higgins went public earlier this year with allegations that she had been raped by a colleague in the office of Senator Linda Reynolds in March 2019 after a night out drinking with colleagues.

Security personnel found a disoriented Ms Higgins the following morning when she was trying to leave the building and many questions have been asked about how this could have occurred in one of the most secure, highly monitored buildings in Australia.

After the allegations became public Ms Higgins levelled some criticism at the way the incident was handled by her former bosses.

Ms Reynolds faced defamation proceedings for calling Brittany Higgins a “lying cow” within the earshot of other staff members on the day Ms Higgins went public with her sexual assault allegations.

The allegations sparked an Australian resurgence of the #metoo movement, with a handful of women coming forward with similar stories, including some who have made allegations of sexual assault and misconduct against the same man.

The allegations triggered a raft of reviews within Parliament House to improve workplace safety for women and the workplace culture.

The case will come before the ACT Magistrates Court for a mention in September 2021.

The offence of sexual assault in NSW

Sexual Assault is an offence under section 61i of the Crimes Act 1900, which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You had sexual intercourse with another person
  2. Without the consent of the other person
  3. Knowing the other person did not consent, or being reckless as to whether the other person consented, or having no reasonable grounds to believe the other person consented

You must be found not guilty if the prosecution is unable to establish all three of those ‘elements’.

Sexual intercourse is defined by section 61HA as:

  1. Penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person, or
  2. Introduction of a penis into the mouth of another person, or
  3. Cunnilingus, or
  4. The continuation of any of the above activities.

What is consent in sexual assault cases?

Section 61HE of the Act provides that consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

To establish a lack of consent, the prosecution must first prove the complainant did not consent.

It must then prove that the defendant knew the complainant did not consent.

This second requirement is established where the prosecution proves that the defendant:

  • knew the complainant was not consenting, or
  • was reckless as to whether the complainant was consenting, or
  • had no reasonable grounds to believe the complainant was consenting.

In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.

In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:

  • does not have the capacity to consent due to their age or cognitive incapacity, or
  • does not have the opportunity to consent as they are unconscious or asleep, or
  • consents because of threats of force or terror, or
  • is unlawfully detained.

The law also provides that a person does not consent if under a mistaken belief that:

  • he or she is married to the defendant, or
  • that the sexual intercourse is for health or hygienic purposes.

The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:

  • was substantially affected by drugs or alcohol,
  • was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
  • was taken advantage of through an abuse of authority or trust.

The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.

Proposed changes to sexual consent laws

The NSW Law Reform Commission has proposed sweeping reforms to sexual consent laws in New South Wales, including making it clear that a person does not consent to sexual intercourse if he or she does not “communicate consent through words or actions”.

It has also suggested that the act of removing a condom without another person’s knowledge – known as “stealthing” – should also be criminalised.

The Commission’s report also detailed a range of new directions that a judge should make to a jury to clear up any misconceptions about consent and sexual assault laws, including that judges would be required to tell juries that “people may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything.”

Judges should also inform juries that it cannot be assumed a person consented “because they wore particular clothing or had a particular appearance” and that sexual assault can occur between two people who are married or in a relationship.

Juries would also be told that “trauma may affect people differently” meaning that some witnesses may not show “obvious signs of emotion or distress when giving evidence.”

The commission further recommended expanding the legislation to make clear that a person does not consent if they “do not say or do anything to communicate consent”, or are “so affected by alcohol or another drug as to be incapable of consenting”, or are “overborne by the abuse of a relationship of authority, trust or dependence” or if the person “is mistaken about the nature of the sexual activity”.

But there are concerns that the proposed reforms stop short of saying a person should be required to “take reasonable steps” to ascertain if someone consents to sex.

Under the “reasonable steps” addition, a person could not successfully argue that they held a “honest and reasonable” belief that the other person consented if they did not take reasonable steps to ascertain that.

Sexual consent in the A.C.T.

Sexual consent laws differ from jurisdiction to jurisdiction across Australia.

The Australian Capital Territory is the nation’s only jurisdiction without a statutory definition of consent, and it is generally considered to be more difficult to prove a lack of consent in the seat of federal government than anywhere else in the country.

There have been proposals for a change to this, with many questioning why it should be more difficult to prove sexual assault in the nation’s capital than anywhere else.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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