Archaic rape defence 'loophole' to come under review in Queensland

Archaic rape defence ‘loophole’ to come under review in Queensland

mistake of fact
A 110-year-old legal loophole that allows accused rapists to argue that they had an honest yet mistaken belief that their victim had consented, will come under review by the Queensland State government.

The archaic ‘mistake of fact’ defence that exists in Queensland has been used for many years by defendants, including repeat violent offenders, to walk free from accusations of rape.

The Queensland Law Reform Commission will consider advice from experts before making a recommendation to the Palaszczuk government in early 2020.

Co-author of the most detailed academic study of the use of the ‘mistake of fact’ defence, Bri Lee, told the ABC the announcement was “music to my ears”.

Lee’s research, which was conducted with Bond University law professor Jonathon Crowe, found that the loophole was often used when the complainant had a ‘freeze’ response to unwanted sexual attention and didn’t fight back enough, if there were any issues of mental capacity or language barriers, or if alcohol was involved.

Former Supreme Court justice Roslyn Atkinson called for reform in March, when she called the loophole a “hangover” from outdated attitudes to women.

At the time, Atkinson also said the ‘mistake of fact’ defence could allow men to invoke rape “myths” to beat charges, essentially denying their accusers fair treatment in courts.

The announcement comes after the Women’s Legal Service Queensland called on the state government to overhaul sexual violence laws, as was done in Tasmania fifteen years ago.

Queensland Attorney General Yvette D’Ath said the Palaszczuk government had a proud record of law reform in the area of sexual violence.

“Referring this issue to the Queensland Law Reform Commission gives an opportunity for all voices to be heard as there are many views on this matter and it takes the politics out of this important matter,” she wrote yesterday on Twitter.

“Any potential change should be based on evidence after expert advice.”

The ‘mistaken of fact’ defence still exists in New South Wales.

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