‘The Freeze’ or lack of physical resistance
There are several reasons why a complainant may not fight back even though she doesn’t consent. First, she may be afraid because of the express or implicit threat of physical violence. Second, she may be affected by the ‘freezing response’ (or ‘tonic immobility’, to use the technical psychological term) that is a common psychological reaction to aggression or trauma. Third, she may be inclined to pacify (‘tend and befriend’) the aggressor, rather than confronting him directly due to social conditioning. Fourth, she may rationally judge that it is preferable to ‘get it over with’, rather than risk escalating or prolonging the encounter.
Many cases will feature a combination of these factors. None of them indicates consent as it is currently defined.
The cases here—which are far from isolated examples—show how juries are much more likely to acquit a defendant for ‘mistake of fact’ if the complainant did not clearly resist his advances. Even if the complainant did resist, other factors (such as subsequent passivity or the exchange of money) can support his use of the defence. This troubling reasoning has been approved by the Court of Appeal, even where there is a clear power imbalance between the parties.
These cases show how rape myths and social expectations around sexuality influence the ‘mistake of fact’ defence, even though they are not strictly relevant to establishing consent. Complainants who go along with the defendant’s advances under duress, who express affection after an assault has commenced in an attempt to placate a defendant, who experience a freezing response or otherwise do not vigorously resist, or who have an ongoing financial, employment or other relationship with the defendant, may find that these factors are considered relevant when the ‘mistake of fact’ defence is raised by the defendant.
R v Motlop
The defendant violently assaulted the complainant with a knife because he thought she was cheating on him due to messages on her mobile phone. He threatened to kill her and chopped her hand with the knife, drawing blood. He then beat her with a stick and a chair, bending the legs of the chair in the process. The defendant instructed the complainant to take a shower to wash off the blood, which she did. When she emerged from the shower, he took the knife and stabbed her phone, shattering it. He then punched her three times in the head. After these violent assaults, the defendant had sex with the complainant multiple times. She passively complied, while expressing her reluctance and confusion as to why he would want to do so after assaulting her, and communicating that she was in pain. In between the incidents, she said she loved him. She testified that she did so because she was scared and said “it was my way of survival’’. The Court of Appeal said that the complainant’s expression of love could provide “a rational basis” for the jury to conclude that the defendant had a mistaken and reasonable belief in consent.
This case, like R v Cutts (discussed below) shows how one minor aspect of a complex scenario, combined with passive non-resistance, can be used to rely on the ‘mistake of fact’ defence. The serious and sustained violence that was previously inflicted on the complainant was not enough. This creates a frightening predicament for people in situations of domestic violence.
The full judgment of R v Motlop is available here.
R v Cutts
The complainant had cerebral palsy and was confined to a wheelchair. The defendant was a taxi driver who was employed to drive her home. Once they arrived at the complainant’s home, the defendant entered the flat against the complainant’s wishes. She said “no” to his sexual advances, but he persisted. She ultimately followed his instructions because (on her testimony) he refused to leave and she was afraid. The jury convicted him.
The defendant appealed his conviction on the basis that ‘mistake of fact’ should have been put to the jury because she eventually followed his orders. The Court of Appeal rejected this submission by a 2:1 majority, although Jerrard JA dissented and would have allowed the appeal. The case therefore shows that the acts of a complainant who eventually complies through fear and intimidation may potentially be used as a basis for arguing that a mistake of fact occurred.
The full judgement of R v Cutts is available here.
R v Lennox
The complainant was from Hong Kong and had been living in Australia for just over a year while working as a nanny. The defendant offered her a lift while she was waiting for a bus. On their second date, the defendant drove them to a public park and stopped the car. He tried to kiss the complainant, but she pulled back and said she didn’t want to. The defendant then proceeded to touch and suck her breasts, then put his finger and penis in her vagina, while she continued to say “I don’t want to do that. I kept saying I don’t want, and I keep holding his body or his wrist to try to stop him to touch me.” After the defendant withdrew his penis from the complainant’s vagina, he asked her to masturbate him, which she did briefly because she didn’t want him to rape her again.
The defendant was charged with five counts of rape and sexual assault. The jury acquitted him of three counts and were unable to agree on a fourth, but convicted him of one count of rape based on penile penetration. He appealed his conviction, arguing that the jury’s verdicts were inconsistent. The majority of the Court of Appeal agreed and the conviction was overturned. The majority judges thought that the jury must have doubted the complainant’s evidence that she consistently said “no” throughout the encounter; that being so, they could not reasonably have accepted her evidence that she said “no” to the penile penetration. This left it open for the defendant to rely on the ‘mistake of fact’ defence. Philippides JA, in the minority, would have upheld the conviction; she found that the acquittals could be explained by the fact that complainant’s refusal was less emphatic and consistent in relation to the other incidents than for the penile penetration.
The case illustrates the confusion juries often experience when applying the ‘mistake of fact’ defence. It shows how a supposed lack of ‘emphatic’ resistance by the complainant can lead to acquittals based on ‘mistake of fact’, even where it is otherwise clear that the complainant was not consenting. It also shows how linguistic and cultural differences can work to the complainant’s disadvantage, creating doubt as to whether she expressed her lack of consent clearly enough.
The full judgement of R v Lennox is available here.
R v Rope
The case of R v Wilson set a strong precedent for the test of ‘mistake of fact’, despite being for a driving offence and not a sexual one. In that case, McMurdo P stated that “[t]he belief must be both subjectively honest and objectively reasonable but it is the accused person's belief which is of central relevance.” This passage was then cited in R v Rope, an appeal against guilty verdicts for sexual offences, where convictions were overturned and a new trial was ordered. One judge made the following comment about specific factors arising on the evidence that may have led a jury to believe that ‘mistake of fact’ applied if they had been properly directed:
“In particular the absence of objection, verbal or physical; the proximate potential assistance of a male friend who was not called on; and the lack of actual or threatened violence against the complainant which might have explained subjection on her part make it possible that the appellant did believe there was consent.”
This passage is a clear acknowledgement that factors that the Queensland law properly makes irrelevant to the existence of consent—the absence of overt objection or resistance, failure to alert bystanders and the lack of violence on the part of the assailant—are important in establishing the ‘mistake of fact’ defence. This statement therefore illustrates how the defence allows rape myths and constructions of the ideal victim to reassert themselves in the law.
The full judgment of R v Rope is available here.
Phillips v R
This trial is another example of how ‘mistake of fact’ can be relied upon by a defendant despite clear evidence of him coercing the complainant. The thirteen year old girl was asleep in bed when the defendant, a twenty-one year old man staying overnight in her house, entered her room, climbed on top of her and penetrated her while she tried to push him off. Similar events occurred on three other occasions, resulting in four charges in total. The first and third counts involved evidence of physical resistance by the complainant, while the second and fourth incidents involved passive compliance, although she was not consenting. The defendant was charged with rape and unlawful carnal knowledge as alternatives (since the complainant was under the legal age of consent).
The jury convicted the appellant of rape on the fourth count, but convicted him only of unlawful carnal knowledge on the first and third counts. The second count resulted in an acquittal. It is difficult to see how the jury could have reached that conclusion, given that the first and third counts involved active resistance. The Court of Appeal considered that the jury must have thought either that the complainant was consenting to the first and third counts or that the appellant benefited from the ‘mistake of fact’ defence. However, since the evidence of resistance was greater on those counts than on count four, the latter verdict was considered unreasonable. The Court of Appeal therefore overturned the rape conviction and substituted a verdict of unlawful carnal knowledge on the fourth count as well.
Ironically, it was because the Court of Appeal thought the defendant was less likely to have made a mistake about consent where the complainant resisted (contrary to the jury’s verdict) that it substituted a verdict of unlawful carnal knowledge where she did not resist. The availability of the ‘mistake of fact’ defence therefore seems to depend on whether or not she struggled. However, when a twenty-one year old man climbs on top of a thirteen year old girl and penetrates her in her bed, it should not matter legally whether she struggles or not.
The full judgment of Phillips v R is available here.
R v Dunrobin
Another case in which the complainant initially resisted, then finally passively complied, and the defendant was able to benefit from the ‘mistake of fact’ defence. The complainant was asleep in the house of a friend of the defendant. She awoke to find the defendant lying next to her. He asked her for sexual intercourse, but she refused. He then climbed on top of her and groped her breasts, while she repeatedly told him to stop and attempted to physically push him off. He proceeded to pull off her jeans and have intercourse with her. The complainant testified that although she continued to tell him to stop, she “froze in a way” because she was scared. She also realised the hopelessness of the situation, because she had been molested as a child.
The Court of Appeal upheld the defendant’s appeal against his conviction on the basis that the jury had been improperly directed on the issue of ‘mistake of fact’. The Court of Appeal ruled that the complainant’s freezing response could potentially provide a basis for the jury to conclude the defendant had formed a mistaken belief in consent. It was also relevant that the defendant had paranoid schizophrenia, meaning that he had difficulty interpreting the actions of others. These factors meant a finding of mistake of fact was open to the jury, notwithstanding the complainant’s clear verbal and physical expressions of lack of consent.
The evidence before the court clearly established that the complainant vigorously and repeatedly resisted the defendant’s initial advances, both by words and by physical actions. She explicitly refused his verbal request for sex, then physically pushed him off her. The evidence suggests that the complainant’s ‘freezing’ response only took place after the defendant had commenced having intercourse with her against her protests, at which point a rape had already occurred. The Court of Appeal nonetheless held that the jury should have been told about the ‘mistake of fact’ defence because it was possible they would have acquitted the defendant.
This suggests that either the complainant’s vigorous resistance was not enough to overcome the ‘mistake of fact’ defence, or that her subsequent ‘freezing’ response somehow retrospectively validated the defendant’s belief that consent had occurred. Fryberg J specifically held that any “expressions of negativity and physical resistance” should be mentioned by the trial judge when directing the jury on how to apply ‘mistake of fact’ defences, indicating that the existence of verbal and physical resistance will not necessarily rule out the defence, although they will be relevant in assessing its applicability.