Mistake of fact excuse in Queensland rape law: the path to reform
2020 kicked off with January’s Skeptics in the Pub, where Professor Jonathan Crowe discussed his work in reforming the ambiguous and archaic legislation concerning sexual assault in Queensland.
Following a comprehensive examination of the legal definitions of consent and assault under the Queensland Criminal Code, Professor Crowe detailed a range of ‘rape myths’, such as intoxication, mental incapacity, and lack of resistance, as well as several case studies which employed these excuses.
These myths are misconceptions about the consent laws which form the basis of many appeals on the grounds of ‘mistake of fact’, and generally result in dismissal of the complainant’s arguments and acquittal of the defendant.
The ‘mistake of fact’ excuse states that a criminal act committed as a result of an “honest and reasonable, but mistaken, belief” should not be punished to a greater extent than if the belief had been correct. This subsection has been exploited in many sexual assault trials in an attempt to reduce punishment.
So how can these laws be changed to facilitate prosecution for the victim and ensure appropriate punishment for the perpetrator? Professor Crowe and his colleague Bri Lee propose two options for policy reform: that mistake of fact be made inapplicable in either all sexual assault cases, or specifically those involving ambiguous or reckless consent, such as intoxication of either party.
Crowe and Lee have presented their suggested amendments to the Queensland Attorney-General and their review of the consent laws to the QLD Law reform Commission, as well as gaining exposure in both academic journals and public media.
Learn more about the laws and Jonathan’s campaign at www.consentlawqld.com
About the speaker:
Professor Jonathan Crowe
Faculty of Law, Bond University
Jonathan Crowe is Professor of Law at Bond University and a regular Visiting Scholar at the University of Texas at Austin. He is the author or editor of eight books and more than ninety book chapters and journal articles, primarily on legal philosophy, ethical theory, and public law. His recent books include Natural Law and the Nature of Law, published by Cambridge University Press, and the Research Handbook on Natural Law Theory, published by Edward Elgar. Jonathan is a former President of both the Australasian Society of Legal Philosophy and the Australian Dispute Resolution Research Network. He is currently involved in a public advocacy campaign with author and activist Bri Lee to reform the mistake of fact excuse in Queensland rape law.