SUBMISSION

Queensland Law Reform Commission: Review of consent laws and the excuse of mistake of fact

This submission applies both ANROWS and external research to the Queensland Law Reform Commission’s review of consent laws and the excuse of mistake of fact in the Criminal Code Act 1899 (Qld) as set out in Consultation Paper WP No. 78.

This submission utilises the report Violence against Women in Australia: Additional Analysis of the Australian Bureau of Statistics’ Personal Safety Survey, 2012 (Cox, 2016) to highlight that women are more likely to be sexually assaulted by an intimate partner than by a stranger or acquaintance. Consistent with ANROWS’s remit, it argues for the importance of any law change to render visible intimate partner sexual assault. It is also consistent with ANROWS research into domestic and family violence that emphasises the importance of “pivoting to the perpetrator” to maintain the onus of responsibility for abuse on the perpetrator of violence (Mandel, 2014 as cited in Healey et al., 2018). It argues that a move to affirmative consent is a way to keep the focus on perpetrators’ positive duty to take actions to ascertain consent, rather than on victims’ and survivors’ attempts to avoid being sexually assaulted.

This submission recommended:

• that when making changes to the Criminal Code Act 1899 (Qld) (the Act) there is a strong need to consider how any changes render visible, and respond better to, the prevalence of intimate partner sexual violence
• revising inconsistent, non-inclusive and outdated terminology to make the updated Act easier for all Queenslanders to understand
• careful consideration of the impact of changes to the Act upon equitable access to justice for priority populations
• that affirmative consent and withdrawal of consent should both be essential parts of the updated Act
• that the list of circumstances in the Act should either be extended to include non-imminent threats; fear of harm (either to the person, another person, or an animal); fear of degradation, humiliation, exposure, outing, or harassment; and intimidation, blackmail and coercion as part of a pattern of harmful behaviour; or the Act should be reframed to mandate the use of a social entrapment framework when domestic violence is present
• that the Act should mandate a jury direction that utilises social entrapment theory when sexual assault matters involve intimate partner sexual violence to ensure acts of survival are not misconstrued as consent
• that there are strong and compelling reasons to remove or modify mistake of fact with respect to sexual assault offences
• a number of modifications to mistake of fact (if retained) to explain:
  • mistaken belief as to the victim’s consent is not honest or reasonable if the accused is reckless as to whether the complainant consented, or if the accused did not take positive and reasonable steps to ascertain the complainant was consenting to each sexual act
  • mistaken belief is unreasonable if the accused was in a state of self-induced intoxication, and the mistake is not one they would make if they were not intoxicated; and if the complainant was in a state of intoxication and did not clearly and positively express their consent to each sexual act
  • mistaken belief is unreasonable if the complainant was unconscious or asleep when any part of the sexual act or sequence of sexual acts occurred
    including a statement of objectives and guiding principles, the admission of expert evidence, and education and awareness programs to supplement the operation of an updated Act.

Suggested citation

Australia’s National Research Organisation for Women’s Safety. (2020). Review of consent laws and the excuse of mistake of fact (Qld) [Submission]. ANROWS.