I’ve never thought of myself as a rapist.
I’m certainly no Lothario – at least I wasn’t back in my heyday. In fact, I was always a rather diffident suitor (for want of a better word). But it seems I may well have been deluding myself. You see, back in the day when I fancied some bird, as we called them then (the dinky-di ‘sheila’ having, regrettably, gone out of fashion in my late teen years), my first recourse was to the dimly lit restaurant where I would ply the object of my affection with Blue Nun riesling or some other such sophisticated delight.
Truth be told, the wine was as much to dispel my own inhibitions as it was to dispel hers. I thought that, the sexual urge being universal between the sexes, I was not pursuing some unconscionable depredation on the object of my lust, but rather using every means at my disposal to convince her that I was someone with whom she could put aside her own inhibitions. I was not attempting to manipulate the lady into doing something which, sober, she would find physically repulsive, but rather that she should participate in a perfectly natural act with me.
That she might think, ‘Well, he’s no Adonis, but what the hell?’ Sometimes it worked. Sadly, most times it didn’t. Which brings me to the concept of ‘date rape’, which we are talking about in the Lehrmann case.
I have always believed, as Justice Lee has now concluded, that Lehrmann had sex with Higgins that night. And that that had always been his intention. And that he had used alcohol to smooth the path. But it beggars belief to dismiss the possibility that Higgins, initially at least, entertained the same possibility. She was consuming alcohol, apparently at a rate that would have left me senseless, and openly engaging in sexualised conduct with Lehrmann. Lehrmann was entitled to think sex was on Higgins’ agenda as much as it was on his. As the night progressed, at some point, a relatively sober Higgins must have known that Lehrmann’s intention was that they would ultimately have sex.
And in continuing her drinking and fondling with him, she signalled a form of consent. She was, at least, effectively saying, ‘I’m not averse. Let’s see where this goes.’ Yes, Higgins ultimately had a right to finally refuse consent. But what becomes germane, is the point at which she exercises that right and the manner in which she expresses it. Justice Lee’s judgement says that Higgins was too drunk to exercise that right. That takes no account of whether or not she, or anyone else, would have actually exercised that right if they were sober.
As far as Higgins is concerned, it is reasonable to conclude that she was not averse to having sex with Lehrmann. In other words, the act itself would not be repugnant to her. And why would it? Most women enjoy it. If we can conclude ‘on the balance of probabilities’ that Lehrmann had sex with Higgins, then it is reasonable to also conclude, on that same basis, that she went to Parliament House with him in order to have sex with him. At this point, it could be said that there was apparent consent.
So the point is not that, when the act occurred Higgins was incapable of giving consent but that she was incapable of withdrawing it. Can we conclude, on the balance of probabilities that had she been more sober, she would have? You will have to make up your own mind about that – it’s a subjective judgment. Just as it was in the hands of Justice Michael Lee. But in his case that judgment is legally binding and reinforces the fact that the consent laws mean that, if a woman is drunk, then you cannot have sex with her. How drunk? A good question.
And no matter how drunk you are too, you are not permitted an error of judgment. In the case of a driving incident, such as a fatal crash, that is a good thing. Because you made your error of judgment when you were still sober enough to choose otherwise and because the consequences of your error are so damaging. Which brings me to my final point.
Rape, in the sense of a man forcing a woman to submit to him sexually, or spiking her drink so she is not aware what is happening, is a monstrous crime and should be pursued with the full force of the law. But ‘date rape’, particularly in the circumstances of the Lehrmann/Higgins matter, can, in my view, as the law stands be little more than a misdemeanour.
Sex is not some act intrinsically horrifying to women. How traumatic can it be for someone, not a virgin, who embarks on a drinking spree with a man whose clear intention is to have sex, to wake up to find that, yes, they did after all have sex? In the sober light of day, she may reflect that she wishes she hadn’t done it. Issues of personal hygiene and so on aside, for many women, presumably, it’s rather like buyer’s remorse, not entirely dissimilar to deciding the day after a shopping spree that she doesn’t really like that black strapless dress after all.
Lehrmann’s life has been destroyed and its entirely of his own making. It seems that he is something of a sleaze and pretty stupid with it – to ‘go back for his hat’. But it is possible he truly believed that he did not rape Higgins, and his denial that sex took place was based on the knowledge that the ‘date rape’ consent laws would apply and that outright denial was the safest course. (That, of course, begs the question of why he would go back into the lion’s den.)
Justice Lee’s willingness to erect a blast wall between what he regards as Higgins’ untruths concerning the eventful evening, even the so-called bruise, and the further untruths she told about the government conspiracy is challenging to the observer in the street.
The nail in Lehrmann’s coffin was not that he had sex – that per se is not a crime – but that he had it without Higgins explicit consent. Justice Lee found, ‘Given the evidence I have already discussed and the weight I place on contemporaneous representations, I have not reached a level of satisfaction that during the sexual act Ms Higgins said, “no on a loop” and I think it is more likely than not that she did not, or was not, able to articulate anything. On balance, I find it is more likely than not that she was passive (as she later said, “like a log”) during the entirety of the sexual act.’
In other words, Higgins did not explicitly withdraw consent, which suggests to me that Lehrmann was possibly justified in thinking the act was consensual.
Who knows? Despite the catalogue of her falsehoods that Justice Lee exposed, Higgins is now a genuine certified 24-carat-gold victim. A victim, in the first instance of Lehrmann and, in the second instance, of her now boyfriend, David Sharaz.
What the hell happened to, ‘I am woman, hear me roar!’
