freediver wrote on Jun 11th, 2019 at 11:53am:| Sounds like that makes ignorance an excuse. |
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Yes it does. Or even worse, the more legally minded offender can knowingly exploit this loophole then claim that he was honestly under the impression that there was consent.
QLD is the worst state for a sexual assault complainant.
In a number of recent cases, defendants have, for instance, cited their own intoxication to support their use of the defence, effectively arguing they were so drunk they thought the complainant was consenting.
In other cases, the complainant's intoxication has been cited — even when she was so inebriated she was legally incapable of giving consent — with the defendant claiming she was so drunk he thought she was freely participating.
In one case a who stuttered her way through her evidence in chief, had woken up to find a man inside her, but didn't scream straight away because she assumed it was her ex-boyfriend — until she came to and realised the shape in the dark above her was actually a friend of his.
Struck with fear, she cried out, pushed him off and ran into the bathroom, locking the door behind her.
In court, however, the defendant argued that the woman was extremely drunk and not only consented but also initiated the sex, and that either (a) she was awake the whole time then changed her mind and 'went nuts', or (b) she passed out and he kept going, mistakenly believing she was still conscious.
For at least a year advocates have been calling on the government to conduct a review of the state's sexual consent laws, particularly the mistake of fact defence, which they say is failing vulnerable complainants including children, women with disabilities and domestic violence victims.
But their appeals have so far failed to elicit more than brief acknowledgment from the Attorney-General Yvette D'Ath, who has said the government had "undertaken a process of consulting with legal stakeholders" whose views were "under consideration."
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