What we are fighting for at this stage is for the Attorney-General to refer this issue to the Law Reform Commission. It is then their job to determine the best possible way forward. They would take submissions from the public, the profession, and any interested parties.
If you believe this issue needs attention and reform, please consider emailing the Attorney-General, the Minister for Women, or your local MP. All their details can be found on the ‘Help Make Change’ page of this site.
Here are our ideas for reform, in order of preference:
#1 - remove ‘mistake of fact’ altogether
Our belief is that the ‘mistake of fact’ defence should be rendered inapplicable to the issue of consent in rape and sexual assault cases. This change would avoid serious injustices occasioned by the current law, without compromising the defendant’s right to a presumption of innocence or a fair trial.
Essentially, a jury would decide whether or not they believed the complainant was consenting according to our current definitions of consent. It is still the prosecution’s responsibility to prove that there was no consent. The jury still need to be convinced beyond reasonable doubt. It’s all fair.
#2 - A positive definition of consent
This approach would involve inserting a new section into the Queensland Criminal Code to qualify the application of the ‘mistake of fact’ defence in rape and sexual assault proceedings. Specifically, the provision would limit the defence in cases where the defendant was reckless as to consent or did not take reasonable and positive steps to find out whether the complainant was consenting. It would also restrict the defence in cases involving self-induced intoxication of the defendant, or the intoxication or incapacity of the complainant.
Victorian law already provides that the circumstances to be considered in assessing the ‘mistake of fact’ defence “include any steps that the person has taken to find out whether the other person consents”. The Tasmanian law goes one step further, providing that a mistake of fact will not be considered honest or reasonable where the accused “did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act.” A person is also precluded from relying on the defence if they were “reckless as to whether or not the complainant consented.”
It will always be the responsibility of the prosecution to prove that the defendant did, or did not, do or say things to establish the complainant was consenting. Shifting to a positive definition of consent certainly will not ‘reverse the onus of proof’, as some people may incorrectly argue.
#3 - at least get rid of the current allowances for intoxication
It is unacceptable that a man who consumes a carton of beer, a dozen cans of rum and cola, and smokes five cones of cannabis, then initiates intercourse with a woman, can say that his extreme intoxication gave him an honest belief that the woman was consenting. These are the facts of R v Soloman. The ‘mistake of fact’ defence should not be available in such cases.
What the legislation could look like
If ‘mistake of fact’ was removed
The defence of ‘mistake of fact’ in s 24 should ideally be rendered inapplicable to rape and sexual assault charges. Section 24(2) currently provides that ‘[t]he operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.’ The defence could therefore be rendered inapplicable to the issue of consent in relation to rape and sexual assault charges by inserting words to the following effect in sections 349 and 352 of the Criminal Code:
Section 24 does not apply in relation to a belief of the person that the other person is consenting to activity that forms the basis for a charge under this provision.
if we moved to a ‘positive’ model of consent
If our primary proposal to remove the defence is not adopted, an amendment should be enacted along the following lines:
Section 24A – Mistake as to consent in certain sexual offences
In proceedings for an offence against section 349 or 352, a mistaken belief by the accused as to the existence of consent is not honest or reasonable if–
(a) the accused was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or
(b) the accused was reckless as to whether or not the complainant consented; or
(c) the accused did not take positive and reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to each act; or
(d) the complainant was in a state of intoxication and did not clearly and positively express her consent to each act; or
(e) the complainant was unconscious or asleep when any part of the act or sequence of acts occurred.