Image text: “Queensland is the worst state for sexual assault complainants to get justice… Our mistake of fact laws are the most archaic of any state or territory in Australia.” - Bri Lee on why reform is so urgently needed in Queensland
what is happening?
Following years of pressure from activists and advocates for law reform, in August 2020, the Queensland Government released proposed amendments to rape and sexual assault law in the form of the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020.
These amendments aimed to consider and address the serious problems with the current law, and bring Queensland’s legislation up to speed with the other states and territories across Australia. What we have seen instead, is exactly the opposite.
The proposed amendments contained within this bill:
Make no significant changes to the existing law
Do not require defendants to show that they took positive steps to ascertain consent (this means that the law does not require affirmative consent)
Ignore the problems with the current law by failing to address the serious issues with the mistake of fact defence
Undermine attempts to eradicate rape myths from the law
Rely heavily on research that has not been published or peer-reviewed, and has serious methodological flaws and reveals nothing about the attitudes of Australian jurors
These proposed amendments have been heavily criticised by sexual assault survivors and advocacy groups, including Rape and Sexual Assault Research and Advocacy and Women’s Legal Service Queensland. These organisations (among a whole network of other organisations across Queensland and Australia), are pushing that the following changes be made to these proposed amendments:
That the definition of consent be changed to include that a person does not consent to an act if the person does not say or do anything to communicate consent to the act
That the mistake of fact defence be limited to include that a mistaken belief by the person as to the existence of consent is not honest or reasonable if the person did not take any positive and reasonable steps, by words or conduct, in the circumstances known to the person at the time of the act, to ascertain that the other person was giving consent to the act
For those without Law degrees, this means:
That the definition of consent will be yes means yes (verbally or by conduct) and anything else is a no
If someone does not take any positive steps (such as asking for consent), then they cannot claim they mistakenly believed that consent had been granted
that sounds simple, so what’s the hold up?
These changes to the amendments may sound simple, but currently they are not being considered as part of the proposed legislative changes.
Over the past few months, the One Woman Project (alongside a host of other organisations) fought for changes to this bill. While the bill has been tabled without these significant changes, our fight is not over. We will continue to advocate for consent law reform in Queensland.
An update: may, 2021
On 6 May, 2021, we received final word from the office of the Attorney-General that the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 received assent. The Act amended the Criminal Code to implement all five recommendations made by the Queensland Law Reform Commission (QLRC) - the same amendments that survivors groups and advocates said would make no significant changes to the existing law. You can read the full letter from the Attorney-General’s office here.
It’s disheartening when you don’t see the significant changes that you have been fighting for. But what this result really shows us is that law reform - while important in the interim - is not the answer. Our systems of government, ‘justice’l and power do not exist to support, grow or protect survivors of violence - these systems continue to exist to uphold those who benefit from them.
Law reform is not the answer - abolition is.