LNP guarantees rape defence review if Labor fails to act

LNP Leader Deb Frecklington is determined to punish rapists and deliver justice for sexual assault survivors by closing an archaic legal loophole allowing offenders to walk free.

A future LNP Government would refer the state’s rape laws to the Queensland Law Reform Commission seeking a major overhaul of the “mistake of fact” defence in Queensland.

Ms Frecklington said action was needed now and called on the Palaszczuk Labor Government to support the LNP’s plan and refer the laws immediately.

“It defies belief offenders continue to rely on legal loopholes to get away with brutal crimes while the Palaszczuk Labor Government delays law reforms,” Ms Frecklington said.

“Victims are denied justice and more potential victims in the community are at risk when rapists walk free.

“Enough is enough, sexual predators must be held accountable.

“Queensland has the most outdated consent laws in the country and it’s time to act.

“I want to protect vulnerable women from sexual violence.

“It shouldn’t take a State Election to bring consent laws into line with community expectations, but if the Labor Attorney-General doesn’t refer the law then the LNP will.”

Ms Frecklington said the LNP’s plan to refer the laws to the Commission reflected calls by the Queensland Women's Legal Service, Bond University law Professor Jonathan Crowe, advocate Bri Lee and retired Supreme Court Justice Roslyn Atkinson.

The current laws allow defendants to rely on the "mistake of fact" defence to argue that they reasonably and honestly but mistakenly believed the complainant consented to sexual intercourse.

The issue with the defence is that it has been used in cases where:

• the accused was so intoxicated they “thought” the victim was consenting
• the victim was so intoxicated that they were comatose and legally incapable of giving consent
• the accused reasonably believed the victim wanted sex because of their social behaviours e.g. she was flirting with the accused and allowed the perpetrator to touch her breasts.

The defence may also be used in cases where a victim ‘freezes’, which is a recognised as a common psychological response to a violent attack.

LNP Shadow Attorney General David Janetzki said too often rapists were sentenced but then had the conviction quashed by the Court of Appeal.

“In practice, the “mistake of fact” defence is setting an alarming precedent and denying victims justice,” Mr Janetzki said.

“There have been many cases involving violent, calculated, repeat sexual offenders who relied on this defence, either at trial or on appeal, to avoid punishment.

“Good laws are balanced laws, but the “mistake of fact” is skewed in the perpetrator’s favour.

“It’s inexcusable Labor has failed to act and review these laws.

“The LNP knows more needs to be done to protect victims of rape and if Labor doesn’t act, we will take this policy to the people of Queensland at the 2020 election.”

Mr Janetzki said Tasmania had a model for legislative reform in this area that could be considered.

In Tasmania, a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused –

• was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or
• was reckless as to whether or not the complainant consented; or
• did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act.

Victoria has introduced similar laws while the New South Wales Attorney-General referred the sexual consent laws for review to the New South Wales Law Reform Commission last year.