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QLRC report recommendations target consent law and mistake of fact excuse

Queensland Attorney-General Yvette D’Ath has signalled updates to the Criminal Code following the Queensland Law Reform Commission (QLRC) review of consent law and the excuse of mistake of fact.

In a letter to Queensland Law Society, Ms D’Ath said that the QLRC report, which was tabled in Parliament last Friday 31 July, made five evidence-based recommendations for key aspects of the existing law to be clarified. This clarification would modernise, strengthen and update the law in this area.

“The QLRC found four legal principles that can be distilled from the current case law in Queensland but are not currently explicitly spelled out in the Criminal Code,” she said.

Those principles were:

  • silence alone does not amount to consent
  • consent initially given can be withdrawn
  • a defendant is not required to take any particular ‘steps’ to ascertain consent but the jury can consider anything the defendant said or did when considering whether they were mistaken about consent, and
  • the voluntary intoxication of the defendant is irrelevant to the reasonableness of their belief about consent, though it can be relevant to the honesty of that belief.

Ms D’Ath said the QLRC recommendations proposed that these principles from Queensland case law were inserted in the Criminal Code. The remaining proposed amendment would fix an anomaly in the Criminal Code whereby the definition of consent differed for some sexual offences.

She said the Department of Justice and Attorney General (DJAG) and the Department of Child Safety Youth and Women would work together to develop a targeted education campaign on the amendments. The campaign would include a communication approach to young people and for those individuals with low literacy.

Ms D’Ath said the QLRC concluded that there should be no amendment to the Criminal Code to deal specifically with a circumstance in which a person consented to a sexual act under a mistaken belief there would be a monetary exchange for that act. However, the QLRC noted that the proposal raised broader policy issues relating to the regulation and protection of sex workers, which was outside the scope of its review.

This issue would be incorporated into a proposed review of regulation of the sex work industry by the QLRC which the Government had already publicly foreshadowed as beginning upon the QLRC’s completion of its current references. The terms of reference for the prostitution laws review were being developed.

The QLRC also observed that there might be merit in giving consideration to the creation of a standalone offence for the practice known colloquially as ‘stealthing’ and the modernising of language in Chapter 32 of the Criminal Code by removing the term ‘carnal knowledge’.

The matter of consent and the excuse of mistake of fact as it applies to sexual offences was referred to the QLRC on 2 September 2019, and the QLRC report was received on 30 June 2020. The evidence base considered by the QLRC was extensive, and including transcripts from 135 rape and sexual assault trials and 40 appellate decisions, as well as other trials referred to it.

Ms D’Ath said the Queensland Government had made a number of significant reforms in the area of sexual violence to support victims through the criminal justice system and was committed to making sure women who experienced sexual violence received the help they needed. The reforms included ‘Prevent. Support. Believe.’,a sexual violence prevention framework for Queensland released on 15 October 2019.

Ms D’Ath thanked QLS for its ongoing contributions to the review of Queensland criminal laws on sexual offending.

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