Australia: Man accused of sexual assault in Parliament House committed to stand trial

The man charged with the sexual assault of Brittany Higgins has been committed to stand trial in the nation's capital.

Former senior adviser to the Liberal party and former staff member of Linda Reynolds' office, Bruce Lehrmann, faced a committal hearing in the ACT Magistrates Court via telephone, after which the 26-year old was ordered to stand trial in the territory's Supreme Court, with a court mention date set on 18 November 2021.

A committal hearing is one which is held in a lower court, such as the Local Court in New South Wales or the Magistrates Court in the ACT. Its purpose is determine whether there is sufficient evidence for the case to proceed to a higher court. The relevant test is whether, based on the evidence, a reasonable jury that is properly instructed on the law by a judge could reach a determination of guilt.

Mr Lehrmann's committal hearing proceeded ‘on the papers' (which is known as a paper committal), meaning only the police brief of evidence came before the magistrate – no further evidence, such as witness testimony, was taken.

A ‘mention' is an administrative court date to determine the status of the case and the way forward. A trial is not expected until early to mid 2022.

Mr Lehrmann has pleaded not guilty to one count of sexual intercourse without consent, which is an offence under section 54 of the Crimes Act 1900 (ACT), which stipulates that:

“A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.”

Earlier this year, Mr Lehrmann's lawyer said his client “absolutely and unequivocally denies that any form of sexual activity took place at all”.

Brittany Higgins made headlines earlier this year after she came forward alleging she had been sexually assaulted by a former colleague in an office after hours at Parliament House.

It's difficult to imagine how such an incident could have transpired in the most secure building in Australia, monitored by CCTV and security guards 24/7.

In fact, it was security personnel who found a disoriented Ms Higgins trying to leave the building the morning after the alleged assault.

The room was ‘steam cleaned' in the following days but, at the time, the Department of Parliamentary Services (DPS) did not know a crime may have taken place.

The allegations by Ms Higgins struck a chord with hundreds of thousands of women around Australia who have endured sexual discrimination, harassment and sexual misconduct and sexual assault in the workplace. It also put the treatment of women in politics in the spotlight.

The Morrison Government was also heavily criticised for its ability to handle sensitive issues.

The Prime Minister's public response to the incident, along with the way Federal MP Lynda Reynolds handled Brittany's complaint at the time, suggested a distinct lack of insight into the nature of sexual assault, even going so far as to ‘victim blame'. Ms Reynolds ended up in a defamation suit for calling Ms Higgins a ‘lying cow.'

The incident prompted a number of reviews into sexual harassment and the workplace culture at Parliament House. Perhaps the most important was led by Sex Discrimination Commissioner Kate Jenkins who reported her interim findings back to the Federal Government in July.

The progress report showed 345 people had come forward to detail their experiences within Parliament House, including nearly 250 female participants.

A survey prepared by Roy Morgan was sent out mid-year inviting more than 3700 current parliamentarians, parliamentary staff and other workers to respond. The survey is intended to explore the prevalence and nature of bullying, sexual harassment and sexual assault in parliamentary workplaces. The results of the survey are expected to shape new policies and procedures to ensure that Parliament House is a safe place to work.

A separate review conducted by deputy secretary of the Department of Prime Minister and Cabinet Stephanie Foster which was conducted earlier this year found more than 70 complaints had been made by political staffers in the past four years, five of which related to sexual harassment.

The report found that there was an “absence of readily accessible, timely, independent, trauma-informed services and response mechanisms.”

While the Government introduced a dedicated 24/7 support line for staff, there is still much to be done to ensure that people understand what is acceptable workplace behaviour and to understand personal boundaries.

A support line is a good start, and a necessary support tool, but it will not actually be the mechanism that will stop bullying, harassment and sexual misconduct. Multiple strategies need to be put into place.

With the Brittany Higgins case now making its way to court, the Federal Government will come under the spotlight again, which will hopefully ensure that it is it not ‘all talk and no action' — that it actually delivers on the promises it made earlier in the year, and not simply let them be forgotten amongst the distraction that's been caused by Covid-19.

Sexual intercourse without consent is an offence under section 61i of the Crimes Act 1900 (NSW) (‘the Act') which carries a maximum penalty of 14 years' imprisonment.

It occurs where a person “has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse”.

‘Sexual intercourse' is defined by section 61H of the Act as:

“(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus, or

(d) the continuation of sexual intercourse…”

Section 61HE of the Act provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

• knows the alleged victim does not consent, or
• is reckless as to whether the alleged victim consents, or
• has no reasonable grounds to believe the alleged victim consents.
• In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

• does not have the capacity to consent due to their age; the age of consent in NSW is generally 16 years, or 18 years where the complainant is under the defendant's ‘special care', or
• does not have the capacity to consent due to a lack of cognitive ability, or
• does not have the opportunity to consent because they are unconscious or asleep, or
• consents because of threats of force or terror, or
• consents due to being unlawfully detained, or
• consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

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