“I thought she was in to it…” Mistake of Fact in Qld — A Call For Change.

Julie Sarkozi, Solicitor at Women’s Legal Service Qld

The recent referral of the Qld ‘mistake of fact’ and ‘consent laws’ to the Queensland Law Reform Commission, is supported by the Women’s Legal Service Qld, and we await the recommendations that it produces with some anticipation and hope the law might finally catch up with other states and reflect modern understandings of consent and sexual relationships.

We acknowledge that amending consent laws is not the whole solution but we are certain substantive reform to the approach of the legal system to sexual violence is required and getting these laws right is a key component to creating an important foundation for other reform to be built on.

Queensland’s existing sexual offence laws, amended to reflect a communicative model of consent, defines consent being “freely and voluntarily given”. The legislation describes circumstances in which consent cannot be given, for example where it is obtained by threat, force or fraud. The interplay of this definition with the excuse of “an honest and reasonable mistake of fact” has been argued as striking the right balance between a subjective (“honest’) test and an objective (“reasonable”) test. The fact finder (the jury) must be persuaded that the prosecution has disproved, beyond a reasonable doubt, that the accused was mistaken regarding the complainants ‘consent’ to the sexual interaction. The prosecution must satisfy the jury beyond a reasonable doubt that the mistake was not honestly made (a subjective test) or that the mistake was not based on reasonable grounds (an objective test). At Women’s legal Service we believe that under the test as it currently operates practically, the reasonable grounds of the defendant may be his cultural beliefs, his disabilities, his mental health issues, his age. Furthermore, once the excuse is raised, the onus remains with the Crown to convince the jury that the accused did not have the “honest and reasonable mistaken belief” beyond reasonable doubt. That is, it does not rest with the Defence to establish that their client honestly and reasonably believed consent was freely given but quiet unfairly, we would argue, requires the Crown to disprove the defendant’s state of mind at the time of the alleged crime. Disproving a ‘state of mind’ is a difficult if not near impossible legal task, especially given the favourable interpretation the Court of Appeal has given to the Defendant’s perspective.

The difficulties in proving there was no consent beyond reasonable doubt, has led to some common law jurisdictions incorporating very carefully, and explicitly drafted legislation that includes how belief in consent could not be “honest or reasonable”. In this case, consent is vitiated if the accused has been “reckless” or has “reckless indifference” to whether the complainant is consenting to the sexual contact, and/ or where there are “no reasonable grounds to hold the belief’ that the other person was consenting. In other jurisdictions, like Canada, Tasmania, and New South Wales, the law goes even further and states that to determine whether a person had reasonable grounds for the belief that the other person was consenting, the accused must show evidence of the steps they took to determine consent. Some in Qld argue our “honest belief on reasonable grounds” test incorporates these requirements, and that someone who is “reckless” or “recklessly indifferent” to the complainant consenting could not have an honest and mistaken belief on reasonable grounds in the complainant’s consent. WLS argues that the lack of explicit definitions and guidance in Queensland legalisation has led to fact finders failing to insist upon requiring evidence of the steps that the accused has taken to determine consent, or turning their minds to whether the defendant was reckless, or recklessly indifferent to whether the other person was consenting. We believe this absence in legislative guidance has focussed the jury’s attention, Queensland Police Service willingness to charge and recommendation for trial, on the behaviour, demeanour and presentation of the complainant. This approach supports the accused bare assertion of mistake, privileging the accused’s interpretation of her behaviour and his claims about his state of mind.

Furthermore, the availability of the ‘mistake of fact’ excuse raises significant difficulties for the prosecution when complainants have, or have had, a relationship with the accused. The ‘mistake of fact’ defence is raised by the defence in the following circumstances:

· I thought she was in to it because “she got into the back seat of my car”,

· I thought she was in to it because “she came up to my flat for a drink”,

· I thought she was in to it because “she was flirting with me all night”, and

· I thought she was in to it because “she didn’t put up a fight.”

WLSQ argues that in the intimate partner context the accused person’s reliance on the s24 mistake of fact excuse has resulted in acquittals based on honest and “unreasonable” beliefs — beliefs that rely upon a close scrutiny of her behaviour, her intoxication, her physical resistance, and evidence of injury, or lack of injury. It is for these reasons that WLSQ is one of the many voices calling for reform.

In 2004, the Tasmanian government instituted reforms to that state’s Criminal code so that a person has not freely agreed to an act if they do not say or do anything to communicate consent. Furthermore, the Tasmanian parliament amended “mistaken belief”, to include that belief in consent is neither ‘honest nor reasonable’ where the defendant failed to take positive steps to ascertain the existence of consent. In 2007, Victorian law was reformed to include: circumstances where a person does not consent to an act includes where the person does not say or do anything to indicate consent (section 36(2)(l) Crimes Act 1958 (Victoria)), and in relation to the reasonableness of the belief in consent, a requirement for the fact finder to take into account any steps the accused has taken to find out whether the complainant was consenting, (section 36A(2) Crimes Act 1958 (Vic)). These sections of the Victorian Crimes Act, provide clear statutory guidance to jurors to focus their attention on the importance of examining the accused’s conduct (specifically discounting self-induced intoxication) in assessing the reasonableness and honesty of his beliefs and not just the complainant’s conduct. Despite a number of iterations since 2007 to the original amendments, the Victorian Crimes Act includes “Guiding Principles” at section 37B, which [Author1] identify facts about sexual violence like, the parties are often known to each other, that rape occurs even if there are no physical injuries and that it is an under-reported crime. Since 2007, NSW have made significant reforms to the substantive laws governing sexual offences including consent being vitiated if the accused was reckless about informing himself of her lack of consent, and if relying upon mistake, the person must show evidence of the positive steps they took to ascertain the complainant’s consent, which cannot include self-induced intoxication.

The position of WLSQ is that the existing laws that define consent and provide for the mistake of fact defence need urgent amendment. One way would be to exclude the mistake of fact defence from consideration in sexual offences. Another would be to shift the onus of proof to the accused when the defence is raised, so that there is a requirement upon the accused to satisfy the finder of fact that there was some real evidence (ie. steps actually taken to determine consent) on which they based their beliefs as to the complainant’s consent. Whilst this option may be unpopular to some, it does apply in drug offences. The s24 mistake of fact defence is also excluded for most drug offences. Nationally, Tasmania the other code jurisdiction provide a cogent, measured and tested examples of the amendments that could be made to our substantive laws here in Queensland. Whatever the outcome, WLSQ argues that this area of our law is need for urgent overhaul, amendment and clarification.