Justice Lee – what does “rape” mean? 

The avalanche of articles that have appeared recently about Justice Lee’s judgment in the Lehrmann case understandably focused on the adverse findings that His Honour made in respect of all the major protagonists, as well as the broader cultural and political issues raised by the Higgins saga.

Virtually all of these articles, either explicitly or implicitly, accept that Lee J’s crucial finding that the defences of truth were made out is correct.

However, a detailed analysis of his reasoning from a defamation law perspective raises doubts as to the soundness of the judge’s key finding.

It is important to remember that the Lehrmann case was a defamation action, not a criminal trial – something that those involved in it, as well as many journalists, seem at times to have forgotten. 

The correctness of Justice Lee’s key finding is ultimately to be judged by reference to the applicable law of defamation.

Justice Lee’s reasoning in respect of the truth case is set out at paragraphs 561 – 621 of his judgment. 

He proceeds by dealing concurrently with two quite discrete issues – did Lehrmann rape Ms Higgins; and have the truth defences been made out.  

It is important to understand the context in which Lee came to reason in this manner.

As he notes at paragraph 562, the submissions put by both defendants on the truth cases – they are set out in the judgment at paragraphs 562-4 and 571-3  – were “less than helpful”. 

Justice Lee, therefore, was compelled to come up with an alternative analysis of his own – and he did so by dealing with the separate issues together – whether Lehrmann raped Ms Higgins and whether the truth defences were made out.

But what if this manner of proceeding caused the judge to attribute to the ordinary reasonable reader an impermissible meaning of the word “rape”?  

Many defamation lawyers would find the structure of Lee’s judgment somewhat unusual.

Normally a judge would first make findings as to what imputations arose, and their natural and ordinary meaning – after setting out in some detail the legal principles governing issues relating to meaning – and only then go on to decide whether the imputations had been proved true.

Justice Lee does not proceed in this manner. Rather he first defines the term “rape” by way of reference to the criminal law, and after finding that this definition is also the natural and ordinary meaning of the term, goes on to find the truth defences made out. 

More importantly, nowhere in the judgment is there any reference to the body of law relating to defamatory meaning. 

In fact, at paragraph 46, Lee J pointedly says “I do not propose to rehearse the uncontroversial principles as to defamatory meaning”. 

Most defamation lawyers would see this as a strange omission in a defamation judgment – and it may have come about as a result of the manner in which the parties conducted their cases at trial.

Lee J raises the issue of the meaning of the term “rape” in the context of determining whether Lehrmann, in fact, raped Ms Higgins.  

He then refers, at paragraph 596, to various ACT judgments on the statutory definitions of rape in that jurisdiction – which, according to him, include the notion of “non-advertent recklessness”. 

Lee J then adopts this idiosyncratic definition of rape, having already rejected Ms Higgins’ evidence that she called out “no” on numerous occasions while Lehrmann was on top of her. 

In doing so he precluded a finding that Lehrmann knew with certainty that she did not consent and proceeds to conclude that Lehrmann raped Ms Higgins.

In order to find the truth defences made out, however, the judge must take the additional step of finding that his idiosyncratic definition of rape is also the natural and ordinary meaning of the term – that is, the meaning that would have been conveyed to the hypothetical “ordinary reasonable reader/viewer” by the matter complained of.  

Lee J does so at paragraph 597 – finding that the “observations” in the judgments that he refers to in paragraph 596 “apply equally to an element embedded in the natural and ordinary meaning of rape”; and that this meaning would be that gleaned by “the ordinary person on the Belconnen omnibus”. 

 Is this key finding correct?  

The legal principles governing issues of meaning in defamation actions are not in doubt, and include the following:

(a) all issues relating to meaning – including the meaning of words in imputations – must be determined by reference to the hypothetical construct of  “the ordinary reasonable reader”;

(b) the ordinary reasonable reader is a layman and not a lawyer, let alone an experienced criminal lawyer or a judge;

(c) the ordinary reasonable reader does not engage in elaborate analysis, and gleans meanings by way of impression;

(d) the ordinary reasonable reader possesses a degree of general knowledge, and does not hold esoteric or sectional views;

(e) all issues relating to meaning must be determined by reference to the context in which they arise – namely, the content of the matter complained of.

These principles only have to be stated to see why doubts arise as to the correctness of Justice Lee’s finding that the natural and ordinary meaning of rape includes the notion of “non-advertent recklessness”.

First, Lee J’s complex, legalistic definition of rape could only be formulated by a lawyer, and an experienced criminal lawyer at that. Lee only arrives at it after a detailed analysis of the case law, and it appears to be beyond the general knowledge of the ordinary reasonable reader.

Second, Lee’s reference to “the ordinary person on the Belconnen omnibus” is revealing (Belconnen is a suburb of the ACT) – and suggests that he may have attributed to the ordinary reasonable reader knowledge of a purely sectional kind. 

The matter complained of was published throughout Australia, and the ordinary reasonable reader must, therefore, be taken to be a citizen of the nation as a whole – not a resident of a particular territory having esoteric knowledge of certain provisions in that territory’s criminal law.   

Third, Justice Lee’s definition of rape is formulated without any reference to the matter complained of at all – and appears to be inconsistent with its contents.

A transcript of the matter complained of is Annexure A to the judgment. Readers can examine it for themselves. 

Ms Higgins allegations made at paragraphs 26-34, including that she called out “no” on multiple occasions – and the numerous references to “assault” and “trauma” would seem to compel a finding that the ordinary reasonable reader would have gleaned a meaning of rape that went well beyond an act of “non-advertent recklessness”. 

There is nothing inadvertent about the violent rape that is so graphically described by Ms Higgins in the matter complained of.

Lee J’s decision to ignore the “uncontroversial principles as to defamatory meaning” may have led him into error – because, in determining the natural and ordinary meaning of the term rape, he was obliged to apply those very principles.

And, if Justice Lee erred in finding that his idiosyncratic definition was the natural and ordinary meaning of the term rape, then his finding that the truth defences were made out arguably cannot stand. 

That is because if the natural and ordinary meaning of rape does not encompass the notion of “inadvertent recklessness” then – on the facts found by Justice Lee, most importantly that Ms Higgins did not repeatedly say ‘no” – Lehrmann did not, for the purposes of the truth defences, commit rape. 

A recent UK Supreme Court defamation case case – Stocker v Stocker 2019 UKSC 17 – bears an uncanny similarity to the Lehrmann case, and canvassed issues virtually identical to those raised above.

In Stocker the trial judge  – there was no jury – had to define the meaning of “strangle” – which was the key term in the primary defamatory imputation sued upon.  

He did so by consulting a dictionary, and came up with a highly idiosyncratic definition of “strangle” – that meant that the defendant’s plea of truth could not possibly succeed, even though the facts found at trial suggested that it should have.

The defendant appealed.

In allowing the appeal, the UK Supreme Court held that the trial judge, in adopting an idiosyncratic dictionary definition of “strangle”, had “failed to conduct a realistic exploration of how the ordinary reasonable reader would have understood” the term, and had also failed to give proper weight to the context in which the term was published.  

The judgment includes the following statements of principle:

(a)  “All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the court’s duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader … To fulfil that obligation the court should be particularly conscious of the context in which the statement was made …” 

(b)  “Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of the alleged defamatory statement. The meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technically precise dictionary definitions divorced from the context in which the statement is made.” 

(c)  “These points only emerge as a result of a close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by their side making points like this.” 

The Supreme Court in Stocker went on to redefine “strangle” in accordance with the applicable law relating to meaning – as appellate courts in defamation actions are fully entitled to do – and, on the basis of the evidence led at trial, held that the defendant’s truth defence had been made out.

Didn’t Justice Lee, by having recourse to the criminal law of the ACT in order to define a key term in the imputations sued upon, commit the same error that the trial judge in Stocker did by relying upon an idiosyncratic dictionary meaning?

It appears that an appeal will be brought in the Lehrmann case – if for no other reason than the combined legal costs, according to recent media reports, amount to some $10 million. 

If the analysis set out above is correct the prospects of any appeal brought by Lehrmann succeeding may be much better than most journalists and commentators believe.

Lehrmann v Network Ten Pty Limited (Trial Judgment) 

Graham Hryce is a former defamation lawyer in Canberra and Sydney