A century-old loophole in Queensland‘s law is set to be closed, after vigorous campaigning from sexual assault survivors and law reform advocates.
The “mistake of fact” defence has allowed accused rapists to walk free if they could convince the court that they honestly believed, even if mistaken, that their victim was consenting to sex.
According to the ABC, the defence, which is 110 years old, has been used to successfully defend even repeat, violent offenders. Arguments often relied on the victim’s previous behaviour indicating consent, including flirting or visiting the offender’s home.
The Queensland government first began reviewing the defence last May, in connection to the case of a woman who was so badly hurt during an alleged assault that she nearly bled to death from a 10-cm internal injury.
“Jayne”, the woman in the case, told the ABC that she was very pleased that it appeared the Government was going to close the loophole.
Right now I’ve just got goosebumps head to toes. I am saddened, but also excited at the same time. Saddened that it had to take me showing pictures and speaking out – but it’s bloody awesome and I pray that they make victims feel safer and more confident in reporting these horrific crimes.
A detailed academic study of the use of the defence was authored by Bond University law professor Jonathan Crowe, and sexual assault survivor and author Bri Lee, whose book Eggshell Skull details her experiences navigating the Queensland legal system as a victim of a sexual crime.
According to reform advocates, Queensland is the worst state in the country when it comes to successful convictions of rape.
New South Wales is the only other state to still have the “mistake of fact” loophole – you may remember that it got plenty of media airtime during the high-profile case of Luke Lazarus, who allegedly raped Saxon Mullins behind a nightclub in Kings Cross and was acquitted after a judge found that he could reasonably have not known that Mullins hadn’t given consent. NSW is also reviewing their laws – here’s hoping it leads to justice for all assault survivors.
