THE DEATH OF SEX

Now the mesmerising Bruce Lehrmann defamation proceedings have drawn to their shabby close, we have a clearer picture of how Australia’s legal system views the guard rails around #sexualconsent. On the evidence — and the barrels of ink devoted to the entire dismal saga — Brittany Higgins and many other of the then Defence Minister’s staff — went for drinks at a fashionable Canberra venue, including Lehrmann, her more senior colleague.

We know she consumed many — perhaps nine, or 11 drinks. She and Lehrmann were all over each other. Said one witness: they were “quite touchy …his hands on her thighs and her hands on his thighs”. They engaged in a mutually “passionate kiss” and a “pash”. They shared a cab to Parliament House in the middle of the night. She stayed with him — and presently wound up in the Minister’s office. And finally on a sofa — wearing — or perhaps later, not wearing — a white dress.

Once Justice Lee found sex had taken place — on the balance of probabilities — Lehrmann’s goose was cooked — because Higgins’ consumption of alcohol meant — at law — she was incapable of giving consent. Regardless of what might or might not have been said on that fetid pre-dawn morning — March 23, 2019 — Bruce Emery Lehrmann was guilty of #rape.

His greater seniority could also have given rise to a claim Higgins felt intimidated — and therefore could not have freely consented, — even if she said YES. This, however, never became the issue — although it’s another treacherous shoal to navigate when out with workmates.

While the law has been around for a while, this case — and its massive coverage — should hammer home the #legalviewofconsent. At least to those able to read a newspaper — or watch anything on television more challenging than Lego Masters or Farmer Wants A Wife. As Justice Lee said: (I am) comfortably satisfied that Ms Higgins was a very drunk 24-year-old woman, and her cognitive abilities were significantly impacted.

Here’s the message: Any male entering a venue where both females and alcohol are present, is at risk of legal and social annihilation if he gets lucky on the night. The same, though perhaps less certainly, for a female seeking a tryst. The distinctly un-flirty chat up conversation now needs to go like this:

Q: Would you like to join me at a private venue we mutually agree for consensual hanky-panky? A: OK. I’m in.

Q: Couple of questions I must ask. Have you had anything alcoholic to drink tonight — and — if YES — how can I be certain you are now legally able to consent?

A crucial question because — at any time for the rest of your life — if your partner complains they were drunk, your livelihood, marriage, social circle and career will likely be at an end — regardless of the court’s ultimate decision. The best you can hope for? Unconvicted rapist! So, in an abundance of caution you also need to consider a further set of sweet nothings before you and your partner waltz dewy eyed into a night of romantic bliss.

So you seductively probe: Any illegal drugs — marihuana, ecstasy, cocaine — anything at all — in the past 24 hours? If YES -- how can I be sure you are legally able to consent? Ever more cautiously — because the accusation of sexual impropriety is fatal — you’d add, perhaps apologetically: What about prescription pharmaceuticals and their side effects?

And, finally — because you’re just out for an evening on the tiles — not a 6 x 6 jail cell, you might further ask: How about mental health? Anything there a court might find impaired your judgment? The same court that may be eventually asked to decide whether you should reasonably have known. Not a deliberation you want to be on the receiving end of — while standing in the dock — your horrified family watching on.

You’d also be well advised to address #continuingconsent. Does that mean every two minutes? Every five? Or YES or NO at each physical milestone as it looms out of the blankets? An increasingly unromantic journey to a basic human activity now dripping with judicial danger. Best to put these perfumed legals to bed before you and your partner turn back the covers. Another issue is the enthusiastic prosecution of sexual allegations — even where the evidence against the defendant is slim. Judges on the NSW bench, for example, have criticised some of these weak prosecutions as a waste of court time.

The final concern — and it’s a biggie — your entire spicy discussion is almost bound to be unwitnessed — and worse — spoken. The problem is proof. It might come down to a Judge’s cold analysis of everything you testify you said Vs the complainant’s version — likely in head on collision with your own.

You should also note the growing legal thesis the complainant might be excused for an inconsistent, inaccurate or even a self contradictory account — because they are suffering debilitating trauma — the far from easily dismissed explanation for why their story might be less than pristine. As the Lee judgment noted: inconsistencies in reporting following a traumatic event are often observed.

Also little comfort if the complainant has lodged near identical allegations against previous partners — because their own sexual background is now largely off limits in a court of law. You can also forget about a co-signed consent agreement scribbled on a beer coaster — or even the 200 page contract you have handy in your back pocket. The deadly rebuttal: Sure, it’s in writing. But I signed under duress — or equally fatal — I was too drunk to know what I was doing.

A multi-headed Hydra. Bullet proof legal consent in a verbal agreement, accompanied by the exacting requirement for constant re-consent.

So — is passion now dwarfed by its lethal consequences? A dangerous precipice where one slip means the end?

The #deathofsex?

I’m #philackman and this #philackmanarticle first to air on #cairnsfm891