Queensland to review state’s sexual consent laws
A legal loophole dubbed the “mistake of fact” defence that has allowed rapists to walk free could be closed, with Queensland’s consent laws up for review.
WARNING: This article includes a description of a sexual assault.
The Queensland government has ordered a review of the state’s sexual assault and consent laws in a move that has been welcomed by advocates.
The Palaszczuk Government said on Tuesday the state’s consent laws will be referred to the Queensland Law Reform Commission for review.
Under particular scrutiny will be a legal loophole that has reportedly allowed many rapists to walk free, according to the ABC.
The “mistake of fact” defence allows an accused rapist to claim they had a reasonable belief that sex was consensual. The defence has been used by accused rapists who claimed that what a woman wore or how she acted mistakenly led them to believe she had given consent.
It has been used by violent repeat offenders, and also in instances where the alleged victim had a disability.
In March, retired supreme court justice Roslyn Atkinson called for the century-old defence to be reformed, calling it a “hangover” that perpetuated outdated beliefs about women.
“For example, she got into the car with me, she met me for a date that was arranged online, she went for a walk with me, she allowed me to kiss her, she allowed me to touch her breast,” Ms Atkinson told the ABC.
“[This] would lead to the unfair case that a woman has to make it perfectly clear that she’s not consenting rather than the man having to establish that she has consented.”
A prime example of the need to overhaul the state’s consent laws is the case of Queensland grandmother “Jayne” (not her real name), who suffered horrific injuries after a consensual sexual encounter in 2010 turned violent.
The 46-year-old suffered bruising from waist to tailbone and underwent emergency surgery for a 10-centimetre internal laceration. A doctor told the court she was “at risk of dying of haemorrhage”.
Despite this, her accused rapist was acquitted based on the “mistake of fact” defence.
Queensland and New South Wales are the only states where the legal loophole still exists.
Tasmania has the most progressive consent laws in Australia, using the “affirmative consent” model. A person must take steps to ensure they have consent — to assume is not enough.
The commission will consider evidence and expert advice before making a recommendation to the government, Attorney-General Yvette D’Ath said in a statement.
“We are taking leadership on this issue, one which is deeply personal for many Queenslanders,” she said.
“Referring this issue to the Queensland Law Reform Commission gives an opportunity for all voices to be heard, and to get the law right.”
Under current law, consent must be given freely and voluntarily by someone with the capacity to give it, and anyone found guilty of rape could be jailed for life.
Queensland’s Minster for Women Di Farmer said the government owed it to victims of sexual assault to get it right, and hoped the review will ensure victims are supported in the best way possible.
The announcement comes after Women’s Legal Service Queensland called on the state government to overhaul sexual violence laws.
The service, which gives free legal advice and social support to domestic violence victims, wants Queensland to adopt a more thorough assessment around how consent is determined in sexual violence cases.
It also called for the mistaken belief defence to be excluded from such matters.
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