**Content warning: Rape and Sexual Assault
In June 2020,the Queensland Law reform Commission (QLRC) published its review of consent laws and the excuse of mistake of fact.
The QLRC considered the operation and application of the definition of consent and the excuse of mistake of fact as they apply to rape and sexual assaults in Queensland. The QLRC received 87 submissions from various stakeholders including the Queensland Law Society. The QLRC’s draft Criminal Code (Consent and Mistake of Fact) Amendment Bill 2020 outlined the Commission’s recommendations for legislative reform.
The Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020(the Bill) was reintroduced into Queensland Parliament on 26 November 2020 and adopts the QLRC’s recommendations.
The existing law in Queensland
What is consent?
Chapter 32 of the Criminal Code 1899 (Qld) (the Code) provides for the offences of rape (section 349) and sexual assault (section 352). A key element of these offences is that they are committed by the defendant without the complainant’s consent.
For the purposes of these offences, ‘consent’ is defined in section 348 of the Code as ‘consent freely and voluntarily given by a person with the cognitive capacity to give consent’. Consent is not freely given if it is obtained by force, by threat or intimidation, by fear of bodily harm, by exercise of authority, by false and fraudulent representations about the nature or purpose of the act or by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner. A person who is asleep or unconscious does not have the cognitive capacity to consent.
The courts have recognised that consent under this definition must be given, that is, communicated. Mere silence and passivity at or before the time of a sexual act do not communicate consent. Consequently, a complainant who does not communicate dissent ‘by words or action’ will not necessarily be taken to have consented. Similarly, courts have held that an act will constitute rape or sexual assault if it continues after consent is withdrawn.
What is mistake of fact?
A defendant may be excused from criminal responsibility for an offence of rape or sexual assault if the act was done under an honest and reasonable, but mistaken, belief that the complainant gave consent (see section 24 of the Code). To raise the defence, the mistaken belief must be honestly and reasonably held and there must be some evidence which raises the possibility of an honest and reasonable mistake.
Currently, section 24 does not expressly require consideration of the steps taken by a defendant to ascertain that the complainant gave consent. However, when the excuse of mistake of fact is raised, juries can consider any steps that were taken (or that no steps were taken) in determining whether the defendant honestly and reasonably believed the complainant consented.
The existing law in other Australian jurisdictions
The ‘affirmative consent’ model
The legislation in Tasmania and Victoria requires a positive representation of consent (known as the ‘affirmative consent’ model). These jurisdictions define consent as ‘free agreement’ and specify that a person does not consent to an act if they do not say or do anything to communicate consent. Another aspect of the affirmative consent model is that steps ought to be taken by a defendant to ensure the complainant is consenting to the sexual act.
The QLRC identified that there were two significant aspects of the existing law in Queensland which already reflect an affirmative consent model: consent must be communicated and the absence of words or actions to communicate consent is not necessarily consent. Section 348 of the Code, therefore, requires a positive representation of consent.
The proposed amendments
The amendments in the Bill codify existing case law principles by expressly providing that:
- a person is not taken to give consent to an act only because the person does not say or do anything to communicate that they do not consent (proposed subsection 348(3));
- if a person continues to do an act after consent is withdrawn by words or conduct, then the act is done without consent (proposed subsection 348(4));
- in determining whether a defendant did an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act, regard may be had to anything the defendant said or did to ascertain whether the other person was giving consent to the act (proposed subsections 348A(1)-(2); and
- in ascertaining whether the defendant held a reasonable mistaken belief, regard may not be had to the voluntary intoxication of the defendant (proposed subsection 348A(3)).
The current Code provisions, along with the amendments suggested by the QLRC, provide a framework to assess a person’s actions against current community standards on a case by case basis.
If you require assistance, support or referral information in relation to a sexual assault, contact the Sexual Assault Helpline here.
In addition, the following Queensland Government websites provide further resources and contact information:
 R v Singh  QCA 130.
 R v Shaw  1 Qd R 641, 646; R v Makary  QCA 258, -.
 R v Johnson  QCA 270; R v OU  QCA 266.
 Queensland Law Reform Commission, Review of consent laws and the excuse of mistake of fact (Report, June 2020) 182 <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0010/654958/qlrc-report-78-final-web.pdf>
 Crimes Act 1958 (Vic) s 36; Criminal Code (Tas) s 2A(2)(a).
Queensland Law Reform Commission, Review of consent laws and the excuse of mistake of fact (Report, June 2020) 82 <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0010/654958/qlrc-report-78-final-web.pdf>. See also Crimes Act 1900 (NSW) s 61HE(4); Crimes Act 1958 (Vic) s 36A(2).
 R v Shaw  1 Qd R 641,646 (Davies and McPherson JJA); see also R v Makary  QCA 258,  - (Sofronoff P).
 See R v Hopper  QCA 561,  re. intoxication not a relevant consideration in deciding whether a belief was reasonable.