in former political staffer Mr Lehrmann’s defamation trial on Monday, finding that he raped his then-colleague in 2019, despite denying for years that any sex had occurred.Wolter Peeters
As this was a civil case rather than criminal, the court did not have to find that Mr Lehrmann raped Ms Higgins according to the Crimes Act, to uphold Ten’s truth defence, but instead find according to “what rape means in contemporary Australia”. Justice Lee said this required establishing that sex occurred, that a party did not consent, and that the other had knowledge of that lack of consent.
He said that recklessness as to consent could prove the ‘knowledge’ element of rape – the other elements being whether intercourse occurred and whether both parties consented – even if the accused was not directly told ‘no’.
Law reformers and legislators have been reviewing definitions of consent and how recklessness and knowledge interact in recent years, with Justice Lee noting in his judgment that “much ink had been spilled and significant attention directed” to the issue.
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