The excuse of mistake of fact in sexual assault and rape cases has recently come under fire by academics and non-lawyers, with some calling it an archaic “legal loophole”. Calls for the excuse to be abolished or heavily modified have resulted in an intensive review by the Queensland Law Reform Commission, which recently published its findings.
Give me the TL;DR version please.
The key points to take away from the review are:
- The excuse is not being abolished.
- The definition of consent is being expanded to take into account what is said or done before and during the event.
- The mistake of fact must be determined by reference to what was said or done to ascertain consent.
- A defendant’s intoxication is irrelevant to whether the belief is reasonable.
Why the need for a review?
Just like any cause or movement in society, when enough pressure is applied, there is usually some sort of response to it. Here, the movement is one fronted by the public figure of author Bri Lee. On her website, co-authored by academic Jonathan Crowe, she calls for the reform of the mistake of fact defence, which she argues undermines and contradicts Queensland’s “comprehensive [and] progressive definition of consent”.
Her argument is that the excuse allows for a defendant to benefit from old attitudes and “rape myths”, by relying on a mistaken belief about consent. She says that it is “extremely difficult” to convict a defendant who relies on this defence, pointing to factors which she says make it easier for the defence to succeed, like the complainant’s level of intoxication and any lack of physical resistance. She also argues that a defendant’s level of intoxication allows them to rely on an honest mistake.
This push, supported by articles in mainstream media, has led to an independent and comprehensive review by the Queensland Law Reform Commission. But before we analyse the report, it is useful to examine the current law in Queensland regarding consent and the mistake of fact excuse.
Get comfortable, because there’s a lot to cover.
The meaning of consent in Queensland.
In Queensland, a person charged with an offence under Chapter 32 of the Criminal Code (rape, s349 or sexual assault, s352) is guilty of an offence if the offence was committed without the other person’s consent.
The current definition of “consent” was inserted into the Criminal Code by the Criminal Law Amendment Act 2000, along with a number of other significant changes. Relevantly, the scope of rape was extended to include offences committed by both men and women upon male and female victims. The ways in which rape could be committed was also expanded, to include penetration by a thing other than a penis, as well as non-penile penetration of the mouth.
Consent is now defined to mean “consent freely and voluntarily given by a person with the cognitive capacity to give the consent.” Certain acts are defined as proving lack of consent, including where force is used, by threat or intimidation, by fear of bodily harm, by exercise of authority, by a false and fraudulent representation about the nature of the act, or by a mistaken belief induced by the accused that they were the victim’s sexual partner.
Therefore, consent requires two elements: a state of mind; and that consent be given.
In R v Makary  QCA 258 the Queensland Court of Appeal considered the issue of consent in relation to a mistake of fact defence. President Sofronoff (with whom McMurdo JA and Bond J agreed) observed at  and :
“The giving of consent is the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act. Although a representation is usually made by words or actions, in some circumstances, a representation might also be made by remaining silent and doing nothing. Particularly in the context of sexual relationships, consent might be given in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour.
In most cases it can be expected that proof that consent was not given will thereby prove the necessary state of mind.”
As McMurdo JA points out later in the judgment at :
“In every case, it will be for the prosecution to prove, as an element of the offence, the absence of the complainant’s consent. The definition of “consent” means that the way in which that element might be proved will vary according to the relevant facts and circumstances. Sometimes it will be the prosecution case that there was no consent, of any kind, which was given, or in other words, that the complainant did nothing to permit the act in question. In other cases, the prosecution will say that a consent which was given, or apparently given, was not given by a person with the cognitive capacity to do so. And in others it will be alleged that the consent was not given freely and voluntarily, such as where the consent was obtained by force or a threat.”
More recently, in R v Sunderland  QCA 156 the Court of Appeal was asked to consider an appeal focusing on the issue of consent. President Sofronoff again wrote the leading judgment, observing in his proposed draft jury directions:
“Sometimes inaction or a failure to voice an objection, implies giving consent to what is being done and sometimes it does not imply consent to what is being done. For example, if a man kisses a woman on the lips, and she does not stop him from doing so and she does not object by saying anything, her failure to do or say anything, together with other circumstances, might imply that she has given her consent to being kissed in that way.”
His Honour also expanded upon his earlier remarks extracted above in Makary, observing at :
“The giving of consent, in the context of a charge of a sexual offence, involves the making of a representation by one person to another, to the effect that the first person agrees to participate in the sexual act that would otherwise be an offence. Such a representation might be made by words or by actions or by a combination of both. Sometimes the words or actions cannot be understood apart from the surrounding circumstances. In cases where the complainant has communicated neither consent nor dissent by words or actions, the inaction cannot be considered in a vacuum. It too must be considered with all of the relevant circumstances surrounding the sexual act.
The circumstances involve matters both past and present. So, inaction in the context of prior acts or words might mean that the complainant has previously given consent which remains operative until withdrawn. This might be established by evidence of relationship or previous interactions between the complainant and accused. So too, inaction, when taken with the other circumstances, may be a manifestation of unwilling submission rather than consent.
Indeed, continued or sustained inaction for the duration of a sexual act may be a strong indicator of submission rather than consent. In R v Day, Coleridge J said that every consent to an act ‘involves a submission; but it by no means follows, that a mere submission involves consent’. In R v Wollaston Kelly CB said that ‘[m]ere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act being done. Mere submission is totally different from consent’.”
What can be surmised from the above cases is that consent is a subjective state of mind, requiring a consideration of all of the circumstances surrounding it. In most matters, it is a simple matter for the Crown to prove consent was not given, such as by the victim giving evidence to the effect of “I did not consent”.
The mistake of fact excuse.
Once there is evidence showing a lack of consent, the only way a person accused of rape or sexual assault can be acquitted of the charge is to ask a jury to accept one of two propositions. That is: it didn’t happen; or they thought the victim was consenting. These are not mutually compatible arguments. Usually, a defence case is run on the basis that the allegation is a lie, or, that the defendant was mistaken about the issue of consent.
The excuse of mistake is found in s24 of the Criminal Code. It currently provides:
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
This section applies to any offence in the Criminal Code and provides a complete defence for the charge, as long as the jury accept the mistake was both reasonable and honest. As President Sofronoff points out in Makary, there must be “some evidence” before this defence can be relied on. Inevitably, this requires evidence of some act (or omission) by the alleged victim that led the defendant to honestly and reasonably believe they were willing to engage in the act (the state of mind) and also that this had been communicated to them in some way (given): see Makary at .
By operation of our law, if this defence is raised, then the prosecution has to exclude it as an excuse, beyond reasonable doubt.
This doesn’t shift the burden of proof to the defence, however. What it means is that the evidence as a whole must allow the question of mistake to be put before a jury to consider. Often, where a complainant says they did not consent, this will require the defendant to give evidence. But in some cases, there may be enough evidence to raise this as a realistic consideration for a jury (such as statements made by an accused person during a police interview, or otherwise by way of inference). As President Sofronoff said, all the relevant circumstances must be considered.
In a case where a defendant gives evidence that the complainant consented, the jury may be asked to consider whether that belief by the defendant was honest and reasonable. But in a case where the defendant gives evidence (or suggests to the complainant through his lawyers) that the offence did not take place, there is obviously no basis for a jury to consider this defence: see Makary at .
The excuse is one that is subject to the test of reasonableness, judged by the standard of an ordinary, everyday jury who bring their own life experiences to the table. It asks what was reasonable for the defendant in their actual circumstances, and enables a jury to take into account factors such as intellectual disability, mental illness and language difficulties. In order for the excuse to be accepted, twelve men and women must unanimously agree that the mistake was honest and reasonable, by stepping into the shoes of the defendant.
Quite often, sexual assault and rape cases occur in the context of one or both of the people involved being intoxicated. In this situation, the question of whether a person has cognitive capacity to give consent is obviously a matter of fact. Intoxication of a complainant may be relevant to the jury’s assessment of whether the complainant was able to consent, whether the complainant was in fact consenting, and the defendant’s belief as to the complainant’s consent. As noted by Jerrard JA in R v SAX  QCA 397:
“The evidence raised for the jury’s consideration the issue of whether the prosecution had excluded the possibility that the complainant had acted before and during the sexual intercourse as the appellant claimed she had, but with the complainant later having no memory of those events, because she was intoxicated. If the jury thought that had happened, it could conclude that the complainant did not have the cognitive capacity to give consent at the time, because she was so affected by alcohol or drugs that she did not know what was happening, and was not able to give consent to it. That would be an available conclusion. There would also be another issue, whether or not the appellant honestly and reasonably believed that she did have cognitive capacity and was consenting; or whether the evidence showed that she was so plainly affected by alcohol as to obviously lack cognitive capacity, as the appellant then well knew.”
His Honour goes on to observe:
“Cases of this nature, where a considerable quantity of alcohol or another drug has been consumed, and when intercourse occurs in circumstances of which a complainant has no recollection of the intercourse or of the prior events, almost always raise for consideration whether there was obvious stupefaction from alcohol and cognitive incapacity, of which a defendant simply took advantage; or whether a defendant mistakenly but honestly and reasonably believed actual consent was given with cognitive capacity. The issue is not concluded for the prosecution because it establishes to the jury’s satisfaction that a complainant did not have sufficient understanding to know what was happening and give consent to it. There remains the issue of whether that lack of cognitive capacity was either obvious or also actually known to the defendant, excluding the possibility of reasonable mistake about it.”
In cases where the defendant is the one who is intoxicated, it doesn’t suddenly make his or her belief reasonable because their own cognition and decision making ability was impaired. While a mistake about consent might have been honestly held in their mind, it can still be completely unreasonable in the circumstances: see R v Hopper  QCA 561 at 10.
This means that a jury must put aside how drunk a defendant is when determining this pivotal question. This is a matter of common sense. It means a defendant can’t “get away with it” by using a “legal loophole”, arguing that they were honestly and reasonably mistaken because they were affected by drugs or alcohol.
Queensland Law Reform Commission Report: Review of consent laws and the mistake of fact (June 2020).
In its’ 295 page report, the Queensland Law Reform Commission (QLRC) conducted an extensive analysis of the law as it relates to consent and the excuse of mistake of fact. The report was authored by Justice Jackson, Judge (now Chief Judge) Devereaux, Margaret Wilson QC, Penelope White, Nigel Stobbs and Ruth O’Gorman. Assisting them were a team of legal and research officers.
The QLRC received and considered 87 submissions as part of its’ research, from a wide range of respondents including lawyers, academics and other interested individuals and organisations. Forming the backbone of the report was an analysis of 135 trials conducted in 2018, and a further 76 trials singled out in which mistake of fact was raised. In addition, all Court of Appeal decisions between 2000 and 2019 were reviewed by the commission.
The QLRC also considered approaches in other jurisdictions, including states like Tasmania and Victoria where an “affirmative consent” model has been implemented. In summary, the QLRC found no need for changes to the law, but did recommend some amendments to clarify existing provisions and legal principles.
In summary, the recommendations were:
- There is no need for an “affirmative consent” model, as the “giving” of consent is already recognised in the law — instead, clarity should be given to the definition of consent by inserting a new subsection, which confirms the current law that not objecting does not equal consent: “a person is not taken to give consent to an act only because, at or before the time of the relevant act, the person does not say or do anything to communicate that they do not consent to that act.”
- The definition of consent as it appears in s348 should be clarified to confirm the current common law approach that it also applies to sexual assault cases.
- That a new subsection should be inserted confirming the existing principle that consent may be withdrawn, that is: “if an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.”
- The excuse of mistake of fact should continue to apply to cases of rape and sexual assault, and the onus of proof should not be reversed onto the defendant to prove it beyond reasonable doubt.
- That a new provision be inserted to confirm the current law that says intoxication by a defendant is not relevant to determining whether the belief was reasonable.
These recommendations have since been incorporated into a Bill which is currently before Parliament — the Criminal Code (Consent and Mistake of Fact) Amendment Bill 2020.
There are some very interesting statistics in the report, based on an analysis of the 2018 trials. In particular, the QLRC observed that 64% of all the trials examined resulted in an acquittal, and 36% resulted in a conviction. The most frequently used defence was a blanket denial that the offence took place. The mistake of fact excuse was used in approximately one in three cases, with 30% of those defendants being found guilty. The majority of cases where mistake of fact was left for the jury to determine involved intoxication of the complainant by alcohol or drugs, with the main responses to the conduct being roughly equal: freezing, objecting, resisting and placating (with no resistance being the lowest at 13%).
According to the report, the conviction rate is higher where there was a blanket denial of any sexual offending (41% vs 29%). But where mistake of fact was argued, the conviction rate was higher in cases where a jury was asked to consider it than cases where they were not (at 35% to 17%).
Specifically, the report considered and answered the oft-cited argument that the mistake of fact law is a “legal loophole” allowing defendants to get away with sexual offending. The QLRC confirmed that the current law, subject to the above clarifications, strikes the right balance between the rights of an accused person and the interests of the community. The excuse, when properly considered, clearly allows common sense and community expectations to excuse a person from liability if 12 people cannot exclude the possibility of mistake.
The law in this area seems complicated, but once you break it down it is clear that these principles of consent and mistake, which have been refined in Australia for over a decade, are both fair and reasonable. The research shows that it is not, in fact, “extremely difficult” to convict someone who relies on the excuse, nor is there any support for the argument that a complainant’s intoxication (or even a defendant’s intoxication, as Bri Lee wrongly emphasises) means the excuse will be accepted as a fait accompli. The excuse allows for a person charged with an extremely serious crime to avoid being sent to prison when a jury accepts their mistake was both honest and reasonable.
To remove or significantly restrict the current excuse based on heavily biased, uninformed and incorrect assumptions and beliefs would result in an unacceptable risk of innocent people being wrongly imprisoned.
Clearly, the debate has been settled. Mistake of fact is here to stay.
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