This post was originally published on Jonathan and Bri’s website Consent law in Queensland.
**The Law Reform Commission is now accepting submissions until January 31. Please see below for information on how to make a submission**
Consent law in Queensland can be complicated. We actually have quite a comprehensive, progressive definition of consent, but the ‘mistake of fact’ defence undermines and contradicts that definition. It allows defendants to benefit from old attitudes and rape myths, undoing the practical effects that society’s changing attitudes toward consent have had on the definition itself.
A recent empirical study into Australian stakeholder perceptions of the ‘mistake of fact’ defence in rape law—including lawyers, sexual assault professionals and members of the broader community—found that many participants viewed the notion of mistaken belief in consent as vague, overly broad and “biased in favour of the defendant”.
WHAT IS THE CURRENT DEFINITION OF CONSENT?
The crime of rape is defined in Queensland (as it is throughout Australia) as sexual intercourse without “free and voluntary consent”. There is a list of factors that will render consent not freely and voluntarily given, such as threats, intimidation, and fraud. Passive non-resistance (like ‘the freeze’) does not equate to consent, particularly in situations where the complainant feels intimidated. A complainant’s consent also cannot be inferred from unrelated social behaviour such as: her clothes, level of intoxication, or her willingness to accompany the defendant to a private location.
AND WHAT IS ‘MISTAKE OF FACT’?
Section 24(1) of the Criminal Code says that “[a] person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.” The relevance of this in rape and sexual assault trials typically arises when the defendant suggests they had a mistaken belief that the complainant consented.
If the facts of a case make it potentially relevant, the prosecution must prove that the defendant did not have an honest and reasonable belief that the complainant was consenting. The jury may believe that a complainant didn’t want the sex and didn’t consent, but they will acquit the defendant if they believe he had an honest and reasonable belief that the complainant was consenting. (It’s a two-part defence. The ‘honest’ part is a subjective question: What did the defendant have in his mind? The ‘reasonable’ part is an objective question: What would a reasonable person in his position have had in his mind?)
AND WHAT’S THE PROBLEM WITH ‘MISTAKE OF FACT’?
The ‘mistake of fact’ defence undermines the law’s attitude to free and voluntary consent. Consent cannot be established by pointing to the complainant’s social behaviour, level of intoxication, or lack of physical resistance. However, all these factors have been used to benefit defendants who say theirs is a ‘mistake of fact’ situation.
In practice, as you can read in these cases, the ‘mistake of fact’ defence makes it extremely difficult to secure convictions for any sexual assault or rape cases that involve intoxication, ‘the freeze’, mental incapacity, or language barriers – whether present in the defendant, complainant, or both. For example, if a defendant was drunk, this may help him to argue he had an honest belief the complainant was consenting. But if a complainant was drunk, this may also help the defendant argue the complainant’s drunken behaviour wasn’t clearly communicating ‘no’. If you’re a survivor, it’s a lose-lose scenario.
WHAT ARE “RAPE MYTHS” AND WHAT HAS CHANGED?
Rape law has long been influenced by harmful myths such as the idea that most rapes are committed by strangers, ‘no’ sometimes means ‘yes’, or that women are responsible for being raped if they dress provocatively, drink alcohol, engage in flirtatious conduct, or accompany the accused to a private location. These pernicious myths feed into the social construct of the ‘ideal victim’ as a chaste, modest woman who is raped violently by a stranger in a public place. However, the best and most recent data we have from the Australian Bureau of Statistics confirms women are most at risk of being sexually victimised in a residential location, by someone known to them, without the use of a weapon, and rarely with corresponding physical injuries.
Queensland rape law now recognises that rape can be committed in private by someone known to the complainant, and that consent cannot automatically be inferred from the complainant’s dress, level of intoxication, sexual history or lack of physical resistance. These are hard won and important acknowledgments that need better enforcement. However, the ‘mistake of fact’ defence undermines this progress, by letting ‘rape myths’ back into the courtroom through the back door.
NOW IS THE TIME TO MAKE YOUR VOICE AND OPINION COUNT
The Queensland Law Reform Commission has released its consultation paper which is available to read and download here. It’s over 100 pages long and can be complex, so please don’t think you need to read it all, or be a lawyer, to contribute. These laws impact you and you have a right to understand them and have your voice heard when they are being reviewed.
We have summarised the consultation paper and you can download it here. We have also drafted some responses to the main issues which you can also download as a Word document here. We did this so that you can add your own opinions and experiences, and to encourage more people to make submissions.
The Law Reform Commission is accepting submissions until January 31, so this is your chance.
Submissions should be emailed to firstname.lastname@example.org
Or posted to: The Secretary Queensland Law Reform Commission
PO Box 13312 George Street Post Shop QLD 4003
You are allowed to make anonymous submissions, or request that your submission not be publicly shared. Just say so in your letter or email.
Jonathan Crowe is Professor of Law at Bond University. He has researched Queensland rape law for more than 15 years. His work on this topic has appeared in the Criminal Law Journal, the UWA Law Review and the Bond Law Review.
Bri Lee is a freelance writer and the author of Eggshell Skull. Her journalism has appeared in The Monthly, The Guardian, The Saturday Paper, and elsewhere. She is qualified to practice law, but does not.