Archaic 110 Year Old Rape Legal Defence Continues To Set Perpetrators Free. Is This A Joke?

September 1, 2020


Appeals to change a 110-year-old legal defence which has allowed two thirds of accused rapists in Queensland to beat charges have been rejected by the government.

Sexual assault support groups say long awaited changes to rape laws fail to remove the “mistake of fact” defence “loophole” that allows accused rapists to walk free.

The law allows juries to accept alleged rapists had a mistaken, but honest and reasonable belief that sex was consensual.

The groups slammed the proposed changes as “disappointing”, saying the reforms won’t make women safer or encourage more survivors to go to court.

The Government recently introduced draft laws recommended by the Queensland Law Reform Commission (QLRC) after a review of the “mistake of fact” defence.

Women’s Legal Service Queensland (WLSQ) chief executive Angela Lynch said the proposed changes were minor, and involved definitions of consent already recognised in case law.

“We know that two thirds of defendants who use the ‘mistake of fact’ defence get off,” she said.

“Victims have been calling for a move to an affirmative model of consent for years. They have been ignored.

“The changes pretty much maintain the status quo of the current law in Queensland, it’s not going to make women safer, especially those suffering domestic violence.

Women’s Legal Service Queensland CEO Angela Lynch describes the changes as “disappointing”. (ABC News: Julie Hornsey)

“It’s really disappointing. It tells sexual assault victims their voices don’t matter.”

The QLRC found the century-old “mistake of fact” defence should not be scrapped, but the definition of consent should be expanded in the Criminal Code.

The QLRC recommended:

  • Silence should not equate to consent
  • Consent could be withdrawn at any time
  • It’s irrelevant whether an alleged perpetrator was intoxicated or not

It also found an alleged offender should not need to take any particular “steps” to get consent, but juries could consider anything they said or did when considering whether the “mistake of fact” defence should apply.

Attorney-General Yvette D’Ath conceded there was more work needed “across government to examine the experience of women in the criminal justice system”.

“We know only a fraction of cases reported end up in court,” she said.

But Ms D’Ath said the changes would reflect “modern community standards”.

“These significant reforms are designed to improve the experience of sexual assault survivors in the justice system,” Ms D’Ath said.

WLSQ and other advocacy groups have asked for an urgent meeting with the Attorney-General.

“Research shows us there are approximately 46,000 instances of sexual violence each year in Queensland, and in 2018 there were only 308 perpetrators actually convicted,” Ms Lynch said.

“It also shows us conviction rates have reduced over time.

“The review and these laws do not encourage victims to use the criminal justice system.”

Parliament is unlikely to vote on the bill until after the October state election.

Be the first to comment

Leave a Reply

Your email address will not be published.