Controversial loophole that allows accused rapists to walk free to come under review in Queensland

The Palaszczuk government has announced it will review a legal loophole that allows accused rapists to walk free if they believe consent existed. Source: AAP

The Palaszczuk Government has announced the state's sexual assault and consent laws will be reviewed by the Queensland Law Reform Commission.

A controversial legal loophole that allows accused rapists to walk free if they mistakenly believe their victim had consented will come under review, the Queensland government announced on Tuesday.

Queensland’s 'mistake of fact' defence, which means a person is not criminally responsible if they honestly believed sexual consent existed despite no explicit statement of confirmation, is out of step with Australia’s national law which states consent must be given freely and voluntarily by someone with the capacity to give it. 

The Queensland Law Reform Commission will consider evidence and expert advice before making a recommendation to the government in early 2020 on the state’s sexual assault and consent laws, Attorney-General Yvette D'Ath said in a statement.

“Referring this issue to the Queensland Law Reform Commission gives an opportunity for all voices to be heard as there are many views on this matter and it takes the politics out of this important matter,” she said.

“There are many views on this matter.”

State Minster for Women Di Farmer said the government would seek to support sexual assault survivors “in the best way possible”.

“We owe it to the victims and survivors to get these laws right,” she said.

Sexual assault survivor Bri Lee has conducted extensive research into the 'mistake of fact' defence.
Sexual assault survivor Bri Lee has conducted extensive research into the 'mistake of fact' defence.

Speaking to ABC News, sexual assault survivor and author of research on the 'mistake of fact' defenceBri Lee said the announcement was "music to her ears".

Ms Lee's research found that the defence was often used in four main situations: when the defendant said they were intoxicated and therefore unable to identify a lack of consent, when either the defendant or complainant were mentally incapacitated, where there is a language barrier and when there is a lack of physical resistance.

"Juries are much more likely to acquit a defendant for ‘mistake of fact’ if the complainant did not clearly resist his advances," Ms Lee's research read.

There has been substantial research into why sexual assault victims may not physically resist attacks, including being temporarily paralysed or afraid of what would happen if they fought back.

The announcement comes months after the Women's Legal Service Queensland called on the state government to overhaul sexual violence laws.

The service, which gives free legal advice and social support to domestic violence victims, wants Queensland to adopt a more thorough assessment around how consent is determined in sexual violence cases.

"We congratulate the Attorney-General and Minister for Women for listening to the community and in particular the voices of survivors in recent sexual violence prevention plan consultations," they said in a statement on Tuesday.

"It is essential the law keeps up with and reflects community expectations on consent and sexual relations. We look forward to participating in the review."

The 'honest and reasonable mistake of fact' defence still exists in NSW. 

With AAP

If you or someone you know is impacted by rape or sexual assault, call 1800RESPECT on 1800 737 732 or visit In an emergency, call 000.

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