The Queensland Law Reform Commission (the ‘Commission’) has ignored concerns of survivors and advocates in failing to recommend changes that would implement a standard of affirmative consent into sexual offence law in Queensland.
The Commission has also disregarded significant peer-reviewed, academic evidence, instead referring to a UK study that has not passed a peer-review process and has not been published.
After a 10-month review, the Commission made a total of just 5 recommendations.
The result is a ‘slap in the face’ to survivors of sexual violence in Queensland. The failure to recommend that a history of domestic violence be considered in sexual offence cases is devastating.
1. The first recommendation is to change the law to state that a person doesn’t consent to a sexual act just because they don’t actively express lack of consent.
This is an important principle. However, as the Commission acknowledges, it is already well established in the case law.
Importantly, this recommendation leaves open the possibility that passive acquiescence can still amount to consent in some circumstances. Accordingly, the recommendation falls far short of other Australian jurisdictions such as Victoria, where a person does not give consent if they ‘do not say or do anything to indicate consent’.
This means that affirmative consent has not been made law in Queensland
2. The second recommendation is to clarify in law that the definition of consent applies to cases of rape and other cases of sexual assault.
This is a technical reform that clears up an interpretive problem in the law. It does not change the definition of consent itself.
3. The third recommendation concerns the withdrawal of consent. It states that that consent can be actively withdrawn ‘by words or conduct’.
This principle already exists in case law.
A potential problem with this recommendation is that it put the onus on people who are subjected to unwanted sexual acts to withdraw consent, such as when the nature of the activity changes or the encounter becomes violent.
The mistake of fact excuse allows the defendant to argue that they had an honest and reasonable belief that the other person was consenting. It is similar to the fault element in other jurisdictions (such as Victoria and NSW). Concerns around mistake of fact were significant in prompting the review (see consentlawqld.com).
4. The fourth recommendation would provide that, in determining whether a defendant’s mistaken belief in consent was honest and reasonable, the jury may consider anything the defendant said or did to find out or ensure that the other person was consenting.
This does not change existing law.
The recommendation does not place any positive obligation on a person to ‘take steps’ to ascertain consent. There is no requirement of positive, active steps. It is simply open to the jury to consider the steps that were taken. The recommendation allows defendants to point to anything they did or said to determine consent, no matter how inadequate, to bolster their mistake of fact argument.
Further, a failure to take steps to ensure the other person(s) is consenting does not prevent reliance on the excuse of mistake of fact (i.e. it does not rule out the defendant arguing that the belief was honest and reasonable).
This recommendation fails to protect survivors. This is another protection for the defendant.
5. The fifth recommendation establishes that a defendant’s voluntary intoxication cannot be considered in determining whether the claimed belief in consent was reasonable.
However, this amendment would still allow a defendant’s drunkenness to lower the bar for the mistake of fact excuse, because intoxication can still be considered in relation to whether the defendant’s belief in consent was honest.
Intoxication continues to lower the bar for the mistake of fact excuse; intoxication is relevant to the honesty of a belief in consent.
The Commission arranged a survivor forum in February 2020, consulting for several hours with survivors about issues of consent and mistake of fact. The move was important in finally giving survivors a ‘seat at the table’.
Yet, the report released yesterday does not acknowledge the views expressed at that meeting – evidence that their survivor engagement was symbolic, rather than a genuine attempt to engage with the community.
Review a slap in the face to survivors.
1. The Commission has failed to recommend that a history of domestic violence be expressly considered in sexual offence matters, currently prohibited under section 132B of the Evidence Act 1977 (Qld).
2. The Commission’s report does not explore the impact of the ‘freeze’ response in sexual offences, nor recommend changes to respond to this problem.
3. The Commission falsely states that ‘recent research does not strongly support the concern that jurors commonly harbour false preconceptions or ‘rape myths’. In drawing this erroneous conclusion, the Commission draws on just two studies.
It refers to the findings of the National Community Attitudes towards Violence Against Women and Gender Equality Survey (NCAS) and misstates the findings of that research.
The QLRC claim that the NCAS study proves that adherence to rape myths is low and declining. While there is a general decline on some of the measures outlined in the NCAS, the change is not linear, and there are still a concerning number of Australians who believe in ‘rape myths’.
The QLRC have also cherry-picked the results of the NCAS, for example, leaving aside the finding that 2 in 5 Australians believe that women make up false reports of sexual assault in order to punish men (NCAS, 2017).
The second study referenced to support their claim comes from a study in the United Kingdom which has not been peer-reviewed, nor released for public scrutiny.
4. The Commission has failed to include a specific provision clarifying that a person who is asleep or unconscious cannot and does not consent to sexual contact, and that a claimed mistake that such a person is consenting cannot be reasonable.
5. The Commission also failed to recommend that mistaken belief about consent is not reasonable if the person was seriously intoxicated or under the influence of drugs or alcohol at the time of the offence.
6. The report did not present any recommendation for a legal response to the issue of non-payment or reversal of payment to sex workers. Instead it refers to the ‘broader policy questions about the regulation and protection of sex workers’. The report states that it was ‘outside the scope’ of the review.
7. Despite the increasing evidence of the prevalence of non-consensual condom removal, or ‘sleathing’, the Commission also failed to recommend concrete reforms responding to this phenomenon.
8. The Commission declined to include a set of guiding or interpretive principles into the legislation. This does not meet the recommendations of Family Violence: A National Legal Response, a joint report from the Australian Law Reform Commission and the New South Wales Law Reform Commission released in 2010.