In essence, the right to silence is the right for an accused person not to incriminate themself through their own testimony. In Australia, it is mostly seen as a central part of the presumption of innocence for serious crimes. It is widely used.
At first glance, this seems fair enough. The prosecution should have to prove its case beyond reasonable doubt to avoid wrongful conviction. The right to silence can protect against abuses of process by the state against the individual.
Yet, like many sexual assault and child sexual abuse cases, this trial boiled down to an accusation and a denial: one person’s word against another. It was key to Channel Ten’s legal case, seeking to defend the claims it reported as true.
Given the nature of sex crimes, which mostly happen in private, there is often no hard evidence. There is no CCTV footage or “third party” witness. There is often no paper trail or easy basis for DNA testing where the accused is known or the case is about consent.
What ultimately brought Lehrmann undone in this civil trial was that he chose to give evidence in defence of his reputation. He likely chose to testify because under New South Wales defamation law, the person alleging they’ve been defamed has the onus of proving the statements were, in fact, defamatory. For five days, the open court heard and felt the quality of his evidence and character.
This case was a rare chance to see what happens when everyone tells their story about an alleged rape. The decision is a basis from which legal reformers and academics should be seriously questioning the role of the right to silence in sex crime cases.