Australia Advocacy groups say 'disappointing' changes to Queensland's rape laws fail to abolish defence 'loophole'

12:27  13 august  2020
12:27  13 august  2020 Source:   abc.net.au

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defence in rape cases to the Queensland Law Reform Commission for advice on how to change it. Rape victims and reform advocates hailed the move as a vital step in bringing Queensland ' s The Women's Legal Service Queensland said existing laws were failing vulnerable complainants.

Former Queensland Supreme Court judge Roslyn Atkinson calls for reform to a century-old legal loophole that allows accused rapists to use the "mistake of fact" defence to walk Bond University law professor Jonathan Crowe and lawyer and author Bri Lee say the defence should be abolished .

a blurry image of a person: Advocates say the © Provided by ABC News Advocates say the "disappointing" proposed changes to Queensland's rape laws "tell sexual assault victims their voices don't matter". ()

Advocacy groups have slammed the Queensland Government's "disappointing" proposed changes to rape laws, saying the reforms won't make women safer or encourage more survivors to go to court.

The Government today introduced draft laws recommended by the Queensland Law Reform Commission (QLRC) after a review of the "mistake of fact" defence.

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The Queensland government has ordered a review of the state’ s sexual assault and consent laws to reform a loophole that allows accused rapists to walk free. The service, which gives free legal advice and social support to domestic violence victims, wants Queensland to adopt a more thorough

Rape is a type of sexual assault initiated by one or more persons against another person without that person' s consent. The act may be carried out by physical force, or where the person is under threat or manipulation, or with a person who is incapable of valid consent.

Sexual assault support services consider the "mistake of fact" defence to be a legal "loophole" that allows accused rapists to walk free.

The 110-year-old legal defence allows accused rapists to beat charges if juries accept they had a mistaken, but honest and reasonable belief that sex was consensual.

Research has shown the defence has been used by repeat violent offenders, including those who were drunk or where alleged survivors had a language barrier.

But community legal services, legal academics and survivors' advocates say the proposals are a far cry from what is needed and will not close loopholes for accused rapists.

'It's really disappointing'

Women's Legal Service Queensland (WLSQ) chief executive Angela Lynch said the proposed changes were minor, and involved definitions of consent already recognised in case law.

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"We know that two thirds of defendants who use the 'mistake of fact' defence get off," she said.

"Victims have been calling for a move to an affirmative model of consent for years. They have been ignored.

"The changes pretty much maintain the status quo of the current law in Queensland, it's not going to make women safer, especially those suffering domestic violence.

"It's really disappointing. It tells sexual assault victims their voices don't matter."

The QLRC found the century-old "mistake of fact" defence should not be scrapped, but the definition of consent should be expanded in the Criminal Code.

The QLRC recommended:

  • Silence should not equate to consent
  • Consent could be withdrawn at any time
  • It's irrelevant whether an alleged perpetrator was intoxicated or not

It also found an alleged offender should not need to take any particular "steps" to get consent, but juries could consider anything they said or did when considering whether the "mistake of fact" defence should apply.

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46,000 yearly cases of sexual violence

Attorney-General Yvette D'Ath conceded there was more work needed "across government to examine the experience of women in the criminal justice system".

"We know only a fraction of cases reported end up in court," she said.

But Ms D'Ath said the changes would reflect "modern community standards".

"These significant reforms are designed to improve the experience of sexual assault survivors in the justice system," Ms D'Ath said.

WLSQ and other advocacy groups have asked for an urgent meeting with the Attorney-General.

"Research shows us there are approximately 46,000 instances of sexual violence each year in Queensland, and in 2018 there were only 308 perpetrators actually convicted," Ms Lynch said.

"It also shows us conviction rates have reduced over time.

"The review and these laws do not encourage victims to use the criminal justice system."

Parliament is unlikely to vote on the bill until after the October state election.

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