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The Crumbling Legitimacy of Queensland’s Consent Laws 

By July 20, 2022 July 22nd, 2022 No Comments

Content Warning: This article contains discussions on sexual assault.

In June, Queensland’s Attorney General Shannon Fentiman announced that Queensland is likely to adopt an affirmative consent model, but until then, Queensland remains one of the worst states in Australia for achieving justice for victims 

In Australia, to secure a conviction of rape, the prosecution must prove that the defendant engaged in sexual intercourse without the complainant’s consent. However, it isn’t that easy in Queensland, and a century-old loophole allows perpetrators to use rape myths to walk free.  

In Queensland, the definition of rape centres around consent, which must be ‘freely and voluntarily given with the cognitive capacity to do so’. Consent cannot be obtained falsely, including by threat, force, intimidation, or fraud. Additionally, what is often called ‘the freeze’ response – meaning passive nonresistance during an attack – cannot be used to infer that someone consented. Mistake of Fact is a defence used in sexual assault and rape cases that suggests the defendant had an honest and reasonable – but mistaken – belief that the complainant was consenting. This is easier for a defendant than disproving the incident occurred.  

To prove Mistake of Fact, a defendant will lean into popular rape myths, like what a victim was wearing, drinking, or where they were, to suggest that intercourse was, in fact, consensual.   

Mistake of Fact emphasises how the law is constructed, interpreted, and applied by men to favour men and leads to survivors facing more scrutiny than perpetrators of assault. This allows defendants to benefit from archaic rape myths, impeding the process of justice for a survivor. While it is acknowledged that any gender can commit sexual assault and rape, this article focuses on the male-perpetrator, female-victim paradigm, reflecting the gender disproportionality in these cases.  

  

The Freeze Response

During an attack, a victim of sexual assault may respond in one of three ways; fight, flight, or freeze. Each response is entirely valid and depends on the individual circumstances of the victim, but the freeze response is often misunderstood in terms of sexual assault.   

Some victims have expressed that they feared the threat of implicit or explicit physical violence and determined their safest option was to freeze. For others, it can be a psychological freeze response or tonic immobility, a common reaction to trauma or aggression. The brain assesses that fighting or fleeing would increase the risk of pain and suffering. Therefore, the body and mind shut down instead as a shield for detachment. In cases like these, the defence can establish Mistake of Fact despite freezing not being an indicator of consent under the law.  

In R v Sax the complainant was ‘extremely drunk’ but not entirely unconscious, rendering her incapable of physically or verbally resisting the assault. The defence used her lack of resistance to raise ‘mistake of fact’ as it meant the defendant could have mistakenly believed she was consenting as she did not fight back.   

In R v Dunrobin the complainant initially resisted, then passively complied, allowing the defendant to benefit from Mistake of Fact. The complainant repeatedly told her attacker to stop and attempted to push him off. The defendant then removed her clothes and had intercourse with her. During the trial, the complainant testified that although she initially refused both verbally and physically, her body froze because she was scared and that her resistance would be to no avail and could likely lead to greater harm. The defendant was able to prove Mistake of Fact on the ground of her freezing.  

This has established a dangerous precedent in Queensland – a victim’s initial refusal is not enough to decline consent. Any subsequent freezing somehow retroactively validates the defendant’s belief that consent had been given. When irrelevant legal factors arise, rape myths are used to justify the defendant’s mistaken belief. This reinforces how the law, specifically Mistake of Fact, is constructed, interpreted, and applied by men to favour men.  

  

Intoxication Lowers the Bar for Proving Mistake of Fact

Intoxication, either by the defendant, the complainant, or both, allows the defendant to blame their lack of caution when gauging whether the complainant was consenting on intoxication.   

To prove Mistake of Fact, the defendant must demonstrate that their belief was not only honest but also reasonable. Intoxication cannot be used to prove that the defendant’s mistake was reasonable. However, it can be used to prove that it was honest. Professor of Law and Associate Dean of Research at Bond University, Jonathon Crowe, explains how intoxication lowers the bar for Mistake of Fact.   

‘The honest portion of the mistake essentially means that it was a genuine mistake and not just something they’re making up’, he explained.  

‘The courts have said that if the defendant is intoxicated, then that might mean they would make a mistake that they might not otherwise make [sober], and so in that respect, it can support the honesty of the mistake.’  

While intoxication cannot be used to determine reasonableness, Crowe doubts whether a jury would be able to distinguish this legal technicality.  

‘The problem I think is that because intoxication is relevant to honesty, the defence could potentially have a case theory along the lines of the defendant being so drunk that they made a mistake.’  

Crowe highlights that this is not an issue in other states, as intoxication is deemed irrelevant and cannot be used to prove honesty for Mistake of Fact. However, the ability to rely on intoxication to prove the defendant’s mistake was honest remains an issue in Queensland, where this defence has succeeded in cases where the complainant ‘blacked out’, legally meaning she is incapable of consenting.   

All these factors are reflected in the case of R v Cook where the complainant was unconscious and woke to find the defendant raping her. During the trial, it was noted that the defendant was intoxicated, which was used to refute the prosecution’s evidence of him undressing the complainant as he would have been ‘too drunk to do this’. It was also raised that the complainant was intoxicated, which was used to insinuate that she was mistaken in her account of being raped.   

Intoxication is only legally permissible for determining a victim’s capacity to consent, but in this case, it was used to undermine and critique the complainant’s account, thereby placing the victim on trial rather than the defendant.  

  

The Recent Amendment Has Not Gone Far Enough

The Mistake of Fact defence being available to defendants in Queensland screams to sexual assault survivors that their best efforts to achieve justice will only be in vain. In June 2020, the Queensland Law Reform Commission delivered a profoundly flawed review of the operation and application of consent and Mistake of Fact. For the gravity of such an issue and the immense overhaul needed to amend these injustices for sexual assault victims, the QLRC delivered only five recommendations, three of which only change the application of the law in practice.  

The two substantial recommendations – a person cannot be considered to have consented if they do not explicitly say no, and if someone withdraws their consent by words or conduct any sexual act that continues after this point is considered sexual assault. Both are already established in case law and mean extremely little for survivors. Additionally, these two recommendations don’t consider how the freeze response impacts consent and reinforce the onus on victims to rescind consent rather than on perpetrators to ascertain consent.  

Crowe notes, however, that these recommendations aren’t entirely useless.   

‘You could argue that it is more transparent if you take principles out of case law and put them into the Criminal Code. So, it’s not nothing’, he said.   

‘However, this is in the context where the reason the QLRC had its inquiry in the first place was because of substantive problems that have been pointed out by myself and Bri Lee and other people… and so the QLRC’s reforms didn’t do anything to address those problems because they didn’t change the law, they just codified it.’  

In the subsection on preconceptions about rape and sexual assault, the review states that recent research does not strongly support the concern that jurors commonly harbour false prejudices or ‘rape myths’ or that any such preconceptions affect jury deliberation or verdicts. This indicates a willing ignorance on the part of the QLRC concerning the mountain of studies that have been conducted in Australia regarding the influence rape myths have on jurors’ ability to remain impartial, and instead relied upon a deeply flawed study from the UK. UK legal scholars have heavily criticised this study.  

‘There are two important things to note [about this study]. Firstly, you can’t use a study from the UK as evidence of what happens in QLD trials; there’s just no way you can draw that connection,’ Professor Crowe said.  

‘Secondly, other studies in Australia from different states have shown that rape myths play a role in rape trials, and the QLRC just ignored that in favour of this UK study’.   

So how do we rectify this institutionalised nature of gaslighting survivors and ensure that the justice system upholds the rights of the complainant? According to Professor Crowe, the answer is simple.   

‘I think that limiting the application of the excuse would be a big step forward, and that is what QLD is likely to do at some point because that’s the model that has been adopted in other states … the other option of removing the mistake of fact excuse from rape and sexual assault entirely should be on the table.’  

Essentially, this would mean that the defendant cannot rely upon intoxication to prove their mistake was honest or retort archaic rape myths. Additionally, the defendant must demonstrate that he took positive steps in ascertaining the complainant’s consent.   

In practice, this would mean that the mistake of fact defence would not be available for the defendant to use. This would alleviate the injustice experienced by victims without infringing upon the defendant’s right to a fair trial or presumption of innocence. A positive definition of consent is promoted by removing this defence. The initiating party will be expected to take active steps to ensure their partner consents to each new sexual act, as they cannot rely on this defence to excuse their reckless behaviour.  

Conservative opponents argue that a removal will reverse the onus of proof. This is a flawed argument as the onus of proof remains with the prosecution to prove the defendant had carnal knowledge with the complainant without their consent, remaining consistent with the rule of law and due process. Professor Crowe also refutes this argument.  

‘It’s just false. That is wrong to say in law. Regardless of whether the mistake of fact excuse applies to rape or not, the prosecution would still have to prove the elements of the crime beyond a reasonable doubt.’   

‘This is not just an issue about changing the law, it’s also about changing social attitudes, and that’s probably the most important objective.’   

You may have recently seen NSW’s public education campaign regarding consent and how it can be approached in relatable everyday scenarios. Professor Crowe believes that QLD needs to adopt a similar campaign.   

‘We… need to accompany legislative changes with public education. This is something that should be sustained and should be part of sex education in schools. I think that is the only way to, over time… address and rectify rape myths.’ 

Ella Brumm

Ella Brumm

Ella is a Brisbane based writer and editor of GLASS Magazine. She is currently studying a Bachelor of Law (Honours) and Journalism at QUT.

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