Summary of our amendments to the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020.
Our amendments would have:
- Introduced an affirmative model to define “consent”
- Restrict access to the “mistake of fact” excuse only to instances where the defendant can show they took positive and reasonable steps to ascertain the other person’s consent
Remove the ability to argue the “mistake of fact” when the victim/survivor was unconscious, asleep, or intoxicated and had not positively expressed consent
- Introduce best practice guiding principles to assist the criminal justice system in handling rape and sexual assault (similar to those included in Victorian sexual assault legislation)
These amendments were drafted with expertise and advice from Rape & Sexual Assault Research & Advocacy (RASARA). They are based on model laws drafted by Jonathan Crowe of Bond University, Bri Lee of the University of Sydney, and Asher Flynn of Monash University.
More detailed version:
Introducing guiding principles:
Clause 6A creates a new section of guiding principles to assist the criminal justice system in handling rape and sexual assault.
These guiding principles are to provide clearer guidance on the circumstances in which rape and sexual assault can occur and offer a clear definition of consent that reflects contemporary, respectful sexual relations. Through more appropriate and guiding legislation that provides direction to society, as well as criminal justice actors (judges, prosecutors, defence lawyers), jurors and key parties (victims, perpetrators, witnesses), the law can be used to classify what is and what is not acceptable conduct, and what is expected prior to and during a sexual act with another party. The introduction of guiding principles would bring Queensland in line with other jurisdictions including Victoria.
Include an affirmative model of consent
The amendment of Clause 8 provides a clear definition of consent as ‘free and active agreement’, using an affirmative consent model, and defining what constitutes ‘active agreement’, in order to limit any confusion as to what this might look like.
This clear definition includes:
Consent means voluntarily given to a particular act by a person with the cognitive capacity to give this consent.
- Consent to a particular act, does not mean consent for another act
Consent is only voluntarily given under the following situations:
- each person involved takes all necessary steps to find out whether each other person involved consents
- consent is clearly and positively expressed; and
there is consent to the act immediately before and during the act.
The amended Clause 8 also includes a non-exhaustive list of consent-negating circumstances, including:
- Consent cannot be implied
A person’s consent to a particular act is not voluntarily given:
- Where there are acts of force, intimidation, unlawful detention, or exercise of authority
- If the person is unconscious or asleep, or is submitting to acts based on incorrect beliefs including the promise of payment, or they are under the incorrect belief that the other person would wear a condom.
Restrict the "Mistake of Fact" defence
The Clause 9 limits the use of the mistake of fact excuse with regarding to rape and sexual assault.
The amendment requires the defendant to show they took positive and reasonable steps to ascertain the other person’s consent, if they cannot show this, they cannot use the ‘Mistake of Fact’ defence.
The amendment also clearly removes the defendant’s ability to argue the “mistake of fact” when the victim/survivor was unconscious, asleep, or intoxicated and had not positively expressed consent. As has happened in case law in Queensland.