“THERE ARE SO MANY THINGS I want to say about that case that I can’t, for legal reasons,” says Jennifer Robinson, a trailblazing human rights, free speech and media lawyer, who is best known for representing Julian Assange and Amber Heard. The case she is speaking about is one of the most controversial and impactful ones in recent Australian history. And the trial didn’t even reach a conclusion.
Most Australians know the story of Brittany Higgins and her allegations against Bruce Lehrmann. That Higgins, a political staffer, alleged that Lehrmann, her colleague, raped her in Parliament House. That he faced a criminal trial. That this criminal trial was aborted because it was revealed that a juror had brought outside research into the jury room and that ultimately the Crown Prosecutors decided not to re-prosecute. Lehrmann then sued Channel 10 and former host of The Project Lisa Wilkinson for defamation and so the legal proceedings as to the truth of these allegations continue.
The story is far from over – an investigation into the police’s alleged mishandling of the criminal case began in May and will report to the government in July, while Lehrmann’s defamation suits will go to trial in November.
There is so much we cannot say about this case – which is a good time for me to tell you that this is not, in fact, a story about Higgins and Lehrmann. For legal reasons, it simply cannot be – more on why that is shortly. Instead, it’s a story about a concerning trend that not many people are aware of, yet one that presents even broader consequences. It’s a story about why the Australian public and the press increasingly cannot speak openly about allegations of abuse.
“I’m seeing the same thing all throughout my legal practice,” says Robinson, who is from Australia but currently works in London. “More and more women are afraid to speak out because of legal threats in defamation, privacy, breach of confidence or contempt.
“What we’re seeing is an incredible amount of self-censorship, where survivors will choose to stay silent – or choose not to report to police – once they understand how the law would treat them.”
To be clear, not only is this not an issue that turns on the case of Lehrmann and Higgins – it’s also not even an issue that only affects victim-survivors and alleged victim- survivors. It’s an issue that affects everybody – people of all genders – because, at its core, it’s a question of free speech. It also affects the rights of victim-survivors and their families and friends and impacts the ability of those accused to defend themselves and be heard. That is why it’s important to write this story – because free speech in Australia affects us all, and it is under threat.
Robinson has just co-written a book on this issue, titled How Many More Women, with author and fellow human rights barrister Keina Yoshida. When we meet, I ask her to explain the impetus to write about this trend of women being silenced by the law.
“So much of what we advise on never becomes public and we wanted the public to know what’s happening in the law and how much about violence against women is being censored,” she explains of her line of work. “We advise survivors, friends and families of survivors, rape crisis centres and women’s rights groups about the risks of defamation and the rise and rise of non-disclosure agreements.”
Increasingly, what we’re seeing is a war of opposing forces. There is a huge gulf between the cultural progress we have made in terms of having an open public debate about gender- based violence and the largely hidden but very effective legal backlash against that cultural change. Legal mechanisms – like the threat of being sued for defamation – are imposing a chilling effect on the ability to speak openly about violence; a semblance of free speech that we finally arrived at, after centuries of silence, with the #MeToo movement in 2017.
Of course, #MeToo is a global movement. But this issue is unique to Australia in many ways. As the journalist and social justice advocate Tracey Spicer has commented, we have some of the “toughest defamation laws in the world”. But it’s more than that. Unlike in the US, Australia’s defamation laws place the onus on the person making the allegation to prove its truth. Conversely, for example, in the Johnny Depp vs Amber Heard case, the burden was on Depp to prove that the allegations were false and made with malice. In Australia, a victim is presumed to have defamed the alleged perpetrator unless they can prove that what they said was true or in the public interest.
“So many people come to us thinking it’s safe to speak out in the post-#MeToo era and we have to keep advising them that it’s not,” says Robinson. “We have to get them to understand that the legal threats are real and that’s why we need to change the system. We need a way for women to speak out in the public interest without [there being] disproportionate legal threats.”
But Robinson tells me it’s not even that straightforward – the legal mechanisms being used in Australian courts and around the world to silence those engaged in the legal process haven’t just sprung up in the wake of #MeToo. “These laws have always been there, but as victims have broken the cultural silence about violence, these laws are being increasingly weaponised against those who speak out,” she says. “The law is being used to silence those who dared to break that cultural silence – and it’s happening everywhere.”
IT’S IMPORTANT TO SAY at this point that every Australian, especially those accused of very serious crimes, as Lehrmann has been, has the legal right to dispute the truth of those allegations through the court system and the right to defend their reputation. That is the law and that is the law as it should be.
But because we are seeing an increase in defamation suits being filed by alleged perpetrators, there are some changes that need to be made to legal proceedings to protect the mental health and safety of those accused of defamation when making allegations of violence. None of this is a criticism of the use of defamation proceedings to defend one’s truth – the question here is about the way the law needs to change so that it can only be used for this legitimate purpose and not to threaten or silence alleged victims who want, and have the right to, pursue credible allegations.
For example, Robinson explains, “the criminal law system has a number of protections in place for alleged victims”. In theory at least, “alleged victims of sexual violence are supposed to be given protection in the criminal courts to help them through what is inherently a retraumatising process – like special measures while giving evidence, and jury directions from judges reminding juries to ignore the stereotypes and tropes about sexual violence when they are considering the evidence,” Robinson says.
“But in defamation proceedings – which take place in civil rather than criminal courts – alleged victims do not have these protections, despite the fact these proceedings are equally retraumatising. If anything, defamation proceedings are more retraumatising, because victims are made the defendant, rather than the complainant; they are being sued in civil proceedings and required to get up on the stand and be cross-examined on their allegations. There are no support workers, no helplines, no legal aid or funding support to defend the case – or defend their truth.
“In the civil courts, counsel and judges aren’t trained in how to protect alleged victims from retraumatisation in the way they are in criminal proceedings. We need more trauma-informed training.”
To bring this point home, Robinson references the reason prosecutors cited for not re-trying the criminal rape case against Lehrmann: to protect Higgins’s mental health – and yet now that he is bringing defamation proceedings, those same risks to her mental health are present, only with fewer protections for her. (Higgins could be subpoenaed to give evidence, but has volunteered to do so in the defamation proceedings, where she will be cross examined about the facts – just in the civil court, rather than a criminal court – to defend her truth).
The other key way we could reform defamation law to ensure it is used to legitimately protect reputations and not as a weapon of silence, is something that could be easily and reasonably changed: and that relates to costs.
“It is extremely expensive to find yourself having to defend a defamation lawsuit – and many alleged victims simply cannot afford to do so. The decision not to defend their truth – even if it’s based on the fact that only the middle class and wealthy have access to lawyers – can be taken by the public as an admission that the alleged victim has lied,” says Robinson.
“Too often women are silenced because they cannot afford to defend their free speech – there is no legal aid for defamation. And what does free speech even mean if we cannot afford to assert our right to it?”
A reform suggested by Robinson to ensure that defamation threats are not being made purely to silence meritorious claims is to “increase the cost risk to the person bringing the suit”; that is, to include in our law some kind of barrier for bringing a defamation claim, so that it is no longer the case that anyone wealthy enough to pay a lawyer can bring a defamation suit and retraumatise an alleged victim without sufficient evidence.
Another way to ensure the law isn’t being abused is to strengthen what is known as the public-interest defence. Most people are familiar with the truth defence to defamation – if the defendant can prove that their allegations are true, there can be no defamation, because the damage to reputation will have been caused by the person’s own actions, not the allegations. Alleged victims also have some access to a defence if they can prove that their free speech is in the public interest. But Robinson believes this isn’t enough.
“We need the courts to make clear that these cases will be treated as cases that are in the public interest – we can’t tackle violence against women in our society if we cannot talk about it,” Robinson says. “If we had clearer public interest defences for alleged victims, this would also act as a disincentive for anyone bringing a defamation suit.”
LAWMAKERS HAVE proposed remedying some of these problems with the legal #MeToo backlash with what is called anti-SLAPP legislation – short for “strategic lawsuit against public participation”. This is referring specifically to defamation suits brought by powerful individuals against journalists or accusers in order to threaten or silence, rather than based on a genuine belief that the allegations made are false.
“Anti-SLAPP legislation would strengthen an alleged victim’s ability to claim that reporting violence is in the public interest and would also make it easier for judges to strike out unmeritorious claims at an earlier stage, with lower costs for the alleged victim/ defendant and less emotional distress,” says Robinson.
“We do need these laws, but they won’t be a silver bullet,” she adds. “But fighting for these laws should certainly be on the radar of free speech advocates in Australia.
“Many women experience defamation claims as a continuation of abuse long after they have left their alleged abuser. For example, if an alleged perpetrator brings a defamation claim, they can get access to the alleged victim’s medical records and text messages. Such claims also require alleged victims to be in court, threatening their mental wellbeing and financial security because of the cost and stress of the proceedings, which can also be a form of abuse.”
To be clear, once again, Robinson is not speaking here about Lehrmann’s case. She is speaking specifically about other cases in which perpetrators know the claims are true but use defamation lawsuits to avoid the consequences of their actions. This is becoming increasingly common, as high- profile defamation cases – a number of recent and widely-publicised cases involving international celebrities spring to mind – illustrate that for alleged perpetrators, this use (and potential weaponisation) of defamation lawsuits can work.
And here’s the rub: the cultural moment we are in would have us believe that we are starting to take gender-based violence seriously. Like most avenues of life in the flush of social change, we’re much better at talking about the progress we’ve made than actually turning the conversation into action. But action cannot happen without the support of the legal system behind it. Nor, says Robinson, if we don’t know the extent of the problem.
“The government is always asking: what do we do to fix the problem?” she says. “Our point is that you can’t fix the problem if you don’t understand the scope of it – and as these legal threats cause more and more women to self-censor, we will have less of a picture of just how ubiquitous this problem is.
“That’s why we need stronger public interest laws and defences – it is squarely in
the public interest for women to feel safe and encouraged to speak about their experiences and for us to be able to meaningfully quantify gender-based violence.”
The judge in the Lehrmann case made a sweeping order demanding that journalists not report on allegations or the surrounding issues to ensure a fair trial for Lehrmann, which is why, as I mentioned earlier, this story could not, legally speaking, be about that case. Now, as a court reporter, I see these orders all the time and they are valid – the right to a fair trial is paramount for all. But this order was much more extensive than the ones we court-watchers usually see and could set a dangerous precedent.
Robinson described the judgement as being unique, even for Australia. For example, the judgment said that journalists could not even describe Higgins as “brave” or “courageous” ahead of the trial and warned they had to be careful about having discussions concerning sexual harassment in the workplace. The effect of the judgement was that all authors and publishers – including Robinson and Yoshida – were told they had to remove all references to the Lehrmann case and Higgins’s story.
“Contempt laws exist to prevent the press from reporting that someone is guilty and thereby prejudicing a jury and undermining the defendant’s right to be presumed innocent,” Robinson says. “They are not supposed to stop journalists and publishers from discussing the case at all.”
As Robinson and I speak about this, I recount to her my own shock at the order and,
n particular, at how journalists were responding to it on Twitter. I remember seeing so many journalists warning others not to say anything about the case and thinking to myself: hang on, this is a freedom of the press issue. Why aren’t we talking about that?
Robinson explains that the judgement had a muting effect – it wasn’t clear to journalists and publishers what they could safely say, which limited public conversation about the case, including whether this was a legitimate restriction on free speech, the free press and the principle of open justice.
Robinson also explains to me that when she was writing her book – before the contempt judgement in the Lehrmann trial occurred – she put together a document of all the media articles and public comments being made about the case to eventually cite when she sat down to write. But by the time the book was being fact-checked, when she searched for the tweets, comments and articles that she had cited in the book, a not insubstantial number of them were gone.
“The internet had been scrubbed of important information about this case,” she says.
Robinson and Yoshida – and their publisher – refused to remove all references to Higgins’s story and instead decided to redact large sections of the book: blocking out what they had intended to say until after Lehrmann faced trial to comply with the contempt judgement, while demonstrating to readers how the law operates to censor women from speaking about their experience of violence and the media and publishers from
reporting on it. They plan to release an unredacted and updated version of the book when the trial concludes.
As I’ve said – as a trained lawyer and legal reporter myself – I believe wholly and deeply that everyone accused of a crime should have the right to defend themselves. But I also believe wholly and deeply in alleged victims’ right to be heard – and right now, the law is restricting their ability to be heard. Yet from what I’ve seen during my own decade of reporting – and from what I’ve learned from Robinson – it’s only getting worse.
Robinson says we need to improve how women making allegations of gender-based violence are treated, not just in the criminal courts, but also in the civil courts. “I’ve had other lawyers tell me their clients have decided not to report because of what happened to Brittany, to Amber,” Robinson says, acknowledging the barriers alleged victims face, not only when they come up against the criminal justice system, but also the silencing that occurs in media law. “I have a friend, who is comfortable with me sharing this. Immediately after seeing the news about the Lehrmann prosecution falling apart, and what Brittany went through, she said to me: ‘this is exactly why I never reported my rape’.”
IT WOULD BE EASY TO DISMISS this story as a matter for the judicial system: let’s leave it to the judges and politicians to work out. But as Robinson explains, its implications are far-reaching and extend beyond the courts and into our everyday lives, impacting relationships with friends and family in ways we often don’t consider. Just look at the Johnny Depp v Amber Heard case in the US. Robinson represented Heard in the UK defamation proceedings that Depp brought against The Sun newspaper – the case which Depp lost because the judge accepted Heard’s evidence was true. Depp later went on to sue Heard for defamation in America and won before a jury in Virginia. Robinson says she has repeatedly seen the effect of the US case outcome on clients who come to her for support with rape and domestic abuse claims.
“The way Heard was attacked, ridiculed and demeaned online was appalling,” Robinson says. “The thing I kept telling people was this: if someone in your life is a survivor of sexual or domestic violence and they see you sharing something mocking Amber Heard, they will never feel safe coming forward to you.”
I felt this myself during that trial. I tweeted that “Johnny Depp won’t see your posts turning Amber Heard’s graphic rape allegations into a humiliating meme, but your friends who have survived sexual violence will”. It quickly received 11,000 likes and I have had people come up to me at parties, in tears, telling me that this tweet expressed their exact feeling – that now they will never be able to speak about their experiences to family and friends who engaged in the mocking of Heard.
Johnny Depp won’t see your posts turning Amber Heard’s graphic rape allegations into a humiliating meme, but your friends who have survived sexual violence will. #DeppVsHeard— Lucia Osborne-Crowley (@LuciaOC_) May 9, 2022
And so, Robinson says, we need to think about just how extreme and impactful cases such as Depp v Heard are – it’s not just
causing survivors to decide against coming forward to Robinson, for example, for legal advice, or the police, or a doctor; it’s also stopping people making disclosures to their own friends and family.
All of this chimes loudly with me. I should tell you that I was sexually abused as a child and violently raped as a teenager – it’s why I’ve spent a decade in journalism reporting these issues. And like Robinson’s friend, I never even considered reporting either of these instances of abuse to police, because I knew how I would be treated. That was back in 2007. And I know that if I reported it today, I’d have less protections than I might have had 16 years ago.
And here’s some more evidence if you still need convincing. In addition to the way our defamation laws are protecting alleged abusers, the ability of our criminal justice system to deal with rape complaints is worsening. In 2021, 1.5 per cent of rape complaints in Australia resulted in a conviction. In 2005, it was 12.5 per cent. In 1989, that same figure was 17 per cent. Many see our cultural conversation and believe that our legal system is getting better at delivering justice. But it’s getting worse – both in the criminal and the civil courts. And that’s something that should concern every one of us.
Bruce Lehrmann and Brittany Higgins were both approached for comment for this piece.
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Lucia Osborne-Crowley is a British-Australian writer and journalist. She has written two books, and is currently writing a third on the 2021 Maxwell trial, due out early 2024. She works as a staff reporter for Law360.