Jack Waterford | Handling of Brittany Higgins' allegations sends message

It's not just a story about whether a particular woman was raped at Parliament House in 2019. It's even less a story about whether former defence minister Linda Reynolds, her employer at the time, was badly treated by the media, the then opposition or the woman making the accusations.

Or about the character of the defendant, Bruce Lehrmann, who will not be retried for the alleged rape after the trial's aborting because of the misconduct of a juror. Lehrmann has always denied the allegations.

The wider context is whether any woman, in any circumstances, can expect justice and vindication from the ACT - more widely the Australian system - if she has been sexually assaulted.

Whether the law is fit for purpose. Whether the training, the competence and the enthusiasm of police officers is up to the job of gathering and presenting evidence if an assault has taken place.

Whether the interplay of the investigative and prosecution system, and the courts, are up to the task of establishing the facts by methods fair to both sides. Whether ancillary systems for providing support for victims are to be treated, as they often are by police, as obstacles in the way.

Or whether someone alleging sexual assault can expect to see the investigation of and, if properly accused, conviction and punishment of the person without having her privacy, her dignity and her reputation trashed.

I am a father of four daughters and have three granddaughters. One way of looking at some of the questions involves asking myself whether I could in good conscience recommend that they go to police, or submit themselves to the criminal justice system, if they have been sexually assaulted.

I want to say yes. I want to argue vehemently that they should brave the manifest disadvantages, if only in the interest of helping to ensure that their daughters get security and safety from a better system. These young women are gutsy and brave and know about the rights of women. But I could not in good conscience tell them to seek the help of the law. That's because the odds are, overwhelmingly, that they would get no help at all. Any number of police officers, or others involved in the criminal justice system, agree.

Much as I respect the few who do come forward - a small proportion of those who are assaulted - I do not have much confidence in the capacity of the law, the police or the courts to address one of the most important social problems of our times. Our systems, put simply, are not up to it. In some jurisdictions those who do take their courage in hand find police unwilling to take the matter to the point of laying charges against a known alleged offender.

In certain respects the law has been reformed, but the changes do little to address fundamental disadvantage. In significant parts of the system, especially in police forces, there is also a problem of will to take action against sexual violence, a host of false stereotypes of false accusations with little support in research, and a host of prejudices about whether "good girls" should be avoiding behaviour implicitly thought to "be asking for it''. It's women, not men who are mostly on trial during police investigations.

For weeks after Brittany Higgins made her allegations, initially on television, later formally to detectives, investigators combed her statement line-by-line for inconsistencies or what they thought might be lies.

They visited her doctors, her pharmacists, and took copies of notes made by the Rape Crisis Centre and a counsellor. They jotted down gossip about her sexual history, though this never could form part of any prosecution brief.

They asked for her mobile and regarded as suspicious her reluctance to hand over records of her job as a press secretary, or chats with her boyfriend.

Slowly they invaded almost every aspect of her life, her privacy and her dignity - all the while regarding signs of resistance as evidence of lying, and complaining of her lack of cooperation. Detectives decided to perform a second interview, and made it a harsh cross-examination rather than the "victim-friendly" outline of events that ACT AFP propaganda pretends follows a complaint.

At one stage, some in the police had wondered whether interviewing Lehrmann was even necessary. Some of them, after all, had concluded she was lying, or, if telling the truth, unlikely to be believed by a jury. After a not very inquisitive interview of the defendant, many detectives were willing to overlook manifest inconsistencies in his evidence, including three separate, mutually exclusive, explanations about why he had taken the woman to their minister's offices at Parliament House.

No woman surveying what happened would follow the example of the alleged victim and go to the police seeking justice. On the record of the AFP, the victim would know that her background and evidence would be exhaustively checked by detectives (mostly men) seemingly predisposed to disbelieve her unless there were positive external evidence of anything she said.

She would expect that her privacy would be invaded, and that the most intimate facts about her life, including gossip from others about her sexual history, medical information and personal information disclosed to counsellors would be recorded. And with a risk that it could all be accidentally disclosed to the person accused.

She would know that her texts, emails and metadata about her telephone conversations would be gathered by police and given to defence counsel so that they could cross-examine and embarrass her.

And that later, there was a significant risk, realised in the Lehrmann case, of it being ultimately mysteriously given to journalists apparently on a mission to prove the whole case was a Labor plot.

We do not know who was responsible for the leak. It could be by police or lawyers bound not to disclose anything not produced in court, and guilty of contempt of court if they did, or someone else.

And, if she were in a similar position to Higgins, she would have noted that this was occurring long after it became legally impossible for her to gain any sort of justice or punishment for the perpetrator.

She might feel the same after day upon day of being in the headlines, of being blood sport in Parliament, and the subject of discussion by radio shock jocks. There would be a continuing debate about her bona fides, and her character and personality, with her mostly judged guilty until she proves her innocence. Anyone who doubts that should look at the flat assertions on social media that Higgins made up her allegations.

She will have also learnt that the ACT sexual assault unit was mostly composed of very inexperienced detectives, even at senior levels. She would have read that the ACT police regularly lost its better and more effective detectives to the national AFP, thus dooming sexual assault victims to a continuing cycle of inexperience, ignorance of important matters of law and poor training and example from more senior officers.

She would know that some within the force were given to deep scepticism about rape claims and reflex antagonism to modern views about how the law should protect women. She would know that the instincts of these older white men, including their settled views about how young women should behave, would dominate the investigation.

Most of these more senior officers would end up making the major legal and charging decisions, sometimes with the assistance of very senior police bureaucrats on "sensitive investigations" supervisory bodies, seemingly tasked with avoiding political embarrassment to the AFP.

In due course, such views and received experience among more senior managers and overseers would create the DNA that gave rise to a self-reproducing police culture, full of good old boys and sometimes women whose way of thinking was much the same as their predecessors.

Of course, the holders of such views, and additional ones about Indigenous Australians, are practised in pretending to be "woke" and "politically correct" for police PR purposes.

She would know that this cautious and conservative approach among cops was virtually incapable of error, if only because so few cases emerge at the end. Around Australia, the proportion of credible allegations making their way to charges and trials has been deplorable.

But the ACT has refined this to the point where only about 3 per cent of allegations are tested, seemingly thanks to the instincts and investigative expertise of ACT detectives, and even then, more than half fail before judges and juries. Only a few more tweaks might produce a system where there are no cases at all.

This would be a result somewhat similar to the AFP record in dealing with complaints against police. Such "statistics" and pseudo-facts may give great satisfaction to sections of police management, but hardly to the women of Canberra, who deserve and pay richly for a police and a justice system which is supposed to keep women safe from physical and sexual assault, abuse and harassment and coercion.

That includes many fine women, and not a few fine men actually a part of the AFP or the justice system who are genuinely dedicated to dealing with the problem, and who would, if they were empowered, make a significant difference to the AFP's lamentable record in almost all areas of criminal investigation.

Even without the technology of today, and even without the modern focus on domestic violence, ACT detectives 50 years ago had a far better record and approach than their present-day successors.

She would also know that once managing and supervising detectives formed their theory of the cases, sometimes very early, they would be impatient and rank-focused at anyone disagreeing with them. Any contrary view, or course, would be regarded as proof of a political plot, of feminist zealotry, or of losing that objectivity that only senior white men of overrated experience can be expected to have.

Is the take-home to be, as one friend put it to me, that the ACT or Australian legal system cannot deliver any kind of justice to women. That the "politicisation" - and external pressures and contexts and all of the other factors - make the courts brutal places for women, whether their children have died, or they have been beaten, raped, duped or misrepresented.

READ MORE:

The questions that should be pursued are left hanging, while bit players cry foul and some journalists dig dirt like they are the only ones seeking the truth. Meanwhile the accused rapist gets a soft interview. The DPP is hung out to dry, and the very woman whose appointed job is to support alleged victims is attacked for doing her job. In all this the police seem to be ignorant and cowardly non-upholders of the law. The substantive matter is sidelined, and the woman who alleged the rape is neglected, and abandoned, her dignity and privacy shredded. She's on trial by the media, and now the plaything of politicians.

Sadly, I do not expect that much of this will figure in the report of the Sofronoff inquiry into whether the AFP and the ACT justice system was shown to be fit for purpose during the relevant case. From the pattern of questioning, whether by himself or counsel assisting, I suspect that he might think this something of a one-off, a product of mutual misunderstandings and suspicions, as well as some cop inexperience.

He hasn't gathered the evidence, publicly at least, to judge the calibre of the investigation, the impact of police "sensitivity" management, or the role of the prime minister or his office. The case has a political as well as a legal aspect, so intertwined neither can be ignored.

But it also has an ACT and a federal side, in circumstances limiting his capacity to seek the ultimate answer to questions. I suspect that his solution to these problems will be to pretend that they do not exist. Or that, if they did exist, that they did not affect the investigation or the prosecution, or his conclusions about the state of justice in the territory.

No doubt he will also think that questions of contempt of court by those who have leaked and leaked, and fed a press campaign that has appeared to be targetting Higgins, are beyond the scope of his terms of reference. This might be a fitting blanket to put over a conclusion that the criminal law end of the matter was not significantly affected by political considerations.