Insider’s plea for overhaul of ‘archaic’ sex-consent laws

After years spent campaigning for a review of “archaic” sexual consent laws, Bri Lee is burnt out.

Bri Lee campaigns for changes to laws around sexual consent. Picture: John Feder.

After years spent campaigning for Queensland to review its ­“archaic” sexual consent laws, Bri Lee admits she is “burnt out”.

The former judge’s associate, whose experiences in the legal system led to her book Eggshell Skull, which details the battle faced by victims of sex crimes, is eagerly awaiting the results of an examination by the Queensland Law Reform Commission.

The review, announced on July 9, will include analysis of the Queensland Criminal Code legal defence of “mistake-of-fact”, which allows a defendant to be ­acquitted if they can prove they honestly and reasonably believed a complainant was consenting to sexual activity.

The announcement by ­Attorney-General Yvette D’Ath of the ­review followed years of public pressure and came days after ­Opposition Leader Deb Frecklington backed it.

MORE: It’s no salacious expose: Bri Lee

Ms Lee expects powerful forces, such as the Queensland Bar Association and Queensland Law Society, to lobby hard against the changes.

She said it was typical of a legal system that was weighted in favour of defendants, particularly when it came to sex crimes.

“The sort of imbalance that you see in the courtroom is also reflected in public discourse,” Ms Lee said. “In the courtroom, you have the defendant who is represented by the defence barrister and then you have the prosecutor who serves the interests of the court. What that means is that ­nobody in the courtroom is there for the complainant.”

Ms Lee began writing Eggshell Skull about her own “traumatising process” before Hollywood producer Harvey Weinstein was ­accused of sexually assaulting multiple women, spawning the global MeToo movement that has put sexual assault issues at the forefront of political discourse and led to a national conversation about consent.

The Queensland Women’s Legal Service has been fighting for years to have sexual assault legislation reviewed. The consent laws were amended 20 years ago but are considered to be well ­behind those of other states.

NSW is also reviewing its laws around the issue of implied ­consent.

The Tasmanian government this week announced it would be making changes to its sexual ­assault gag laws that prevent victims from being named or sharing their stories.

“The thing I find frustrating is that some of the comments made by defence barristers or lawyers have suggested that unless somebody is a practising lawyer, they shouldn’t be … opining in this area,” Ms Lee said.

“But the problem with that is if you limit valid opinions to people who practise law, you will only ever hear from the defence because nobody employed by the prosecution, nobody from the crown, can come out and be seen to be picking sides.”

Provisions intended to help complainants have been in the spotlight in NSW this week after a judge ordered a halt to a trial ­because of perceived unfairness to the defendant caused by section 293 of the Criminal Procedure Act, which prevents cross-examination about a complainant’s past sexual history, including previous rape allegations.

The jury in the case would be prevented from hearing about the complainant’s previous false sexual assault allegations, to which she pleaded guilty.

Ms Lee said she was not familiar with the case but believed ­defendants were generally well protected by the law.

“Prior criminal convictions are rarely admitted on either side,” she said.