Proctor : September 2019
32 PROCTOR | September 2019 The evidence is in: the mistake of fact excuse for rape needs reform I have been researching the mistake of fact excuse in Queensland rape law for more than 15 years. For the past two years, Bri Lee and I have been working together to deepen and extend my previous work on this topic. We have found every recent (post-1990) Queensland appeal decision dealing with the excuse in rape and sexual assault cases. Our analysis of these cases formed the basis for a detailed report submitted to the Attorney-General in March. The report is currently under peer review for publication in a scholarly journal. The mistake of fact excuse enables the defendant in a rape or sexual assault case to argue that, even if the complainant did not consent to his advances, he mistakenly believed that the person did. There is a perception that the excuse deals with genuine miscommunications. However, Ms Lee and I found a series of cases where the excuse was successfully relied upon at trial or on appeal by violent, calculated and repeat sexual offenders. Appellate cases do not necessarily offer a representative sample of cases at the trial level. Appellate case law also adds a layer of issues about appellate procedure that can complicate legal analysis. Nonetheless, these cases provide a useful window into the kinds of issues being raised at trial and the jury directions and verdicts that follow. The patterns identified in our research raise serious concerns about the excuse’s effect on the law. Many of the cases we identified involved vulnerable complainants, including children, women with disabilities, survivors of domestic violence and linguistic minorities. The excuse has been successfully used in cases where the evidence indicated the complainant was asleep when initial sexual contact occurred, as well as where the complainant was, in fact, so intoxicated that she was comatose and therefore legally incapable of consenting (but where the defendant alleged a mistake as to the precise degree of her incapacity). Queensland rape law recognises that passive non-resistance is not tantamount to consent. Consent cannot be established based solely on social behaviour by the complainant, such as flirting, consensual kissing or visiting the defendant’s house at night. However, all these factors have been successfully cited by defendants and affirmed by the Court of Appeal as supporting the mistake of fact excuse. In this way, the excuse reinforces ‘rape myths’ that have been progressively removed from the definition of consent itself. Ms Lee and I found several cases where the lack of robust and sustained resistance by the complainant allowed the defendant to rely on mistake of fact. This is concerning given that a ‘freezing response’ (or ‘tonic immobility’) is a very common psychological reaction to sexual aggression or trauma. There are multiple valid reasons why a complainant may not fight back even though she doesn’t consent. Lack of resistance alone should not be a basis for acquittal where the evidence shows consent was not given. Further problems arise in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant (or both). Each of these factors has been treated by the Queensland courts as lowering the bar for the excuse. Defendants can point to their own intoxication in arguing their mistake was honest; they can also point to the complainant’s intoxication as showing that their mistake was both honest and reasonable, even though it may also have been what made the complainant vulnerable. Two people who don’t speak the same language need to show more care and attention, not less, when they engage in sexual activity with each other. The current law puts complainants at a significant disadvantage if they don’t speak the same language as the person who is initiating intercourse. Defence counsel may exploit language differences to paint pictures of grey areas or miscommunications, meaning in effect that women who speak a different language are expected to fight back more vigorously than others. Ms Lee and I canvass two proposals for reform in our report. The first would be to render the mistake of fact excuse inapplicable to the issue of consent in rape and sexual assault cases. This is a strong reform that has not been adopted elsewhere in Australia; it is therefore highly unlikely to be implemented in Queensland. However, we also consider an alternative reform, modelled on the current legislation in Tasmania, that is more moderate and feasible. This is the option we will be putting to the Law Reform Commission. Our proposed amendment involves narrowing the mistake of fact excuse in rape and sexual assault cases where: • the defendant was reckless as to consent • the defendant did not take reasonable and positive steps to ascertain consent • the defendant was in a state of self-induced intoxication and the mistake was not one he would have made if not intoxicated • the complainant was in a state of intoxication and did not clearly and positively express her consent, or • the complainant was unconscious or asleep when the acts occurred. A model legislative provision to this effect can be found on our website at consentlawqld.com. Ms Lee and I have gained wide public support for our work, but also pushback from some quarters. Robust and informed debate on legal reforms is to be welcomed, but some of the comments by lawyers on social media have been vitriolic and personal. I am an experienced and senior academic with a relatively thick skin; I can take it. However, I worry about what this kind of criticism shows about the culture of the legal profession, particularly the criminal bar. If it is not possible to advocate evidence-based reform without receiving ad hominem attacks, then no wonder critics of the status quo are often reluctant to come forward. The Bar Association of Queensland and Queensland Law Society have both publicly opposed any change to the mistake of fact excuse. It is unclear what body of research their conclusions are based on. My sense is that they are relying primarily on the anecdotal impressions of their members. There is certainly much to learn in this area from the views of experienced practitioners. Ultimately, however, law reform must be based on evidence and research. Ms Lee and I have done the hard yards on this issue. We have conducted more detailed research on the mistake of fact excuse in rape law than anyone else in Australia (and quite possibly the world). We have spent countless hours not only compiling research, but also answering questions and giving interviews on our findings. We recognise that criminal excuses and defences should not be narrowed without strong reason, so we have not rushed to judgment. At this point, however, the evidence is in. Reform in this area is badly needed. Jonathan Crowe is a Professor of Law at Bond University.