No escape: Vow to abolish ‘drunk’ rape defence
AN "archaic legal loophole" that is seeing rapists to walk free without punishment will be taken on by the State Opposition.
The move comes as pressure mounts on Attorney-General Yvette D'Ath to make a decision on reforming the state's consent laws, with the Queensland Women's Legal Service, retired Supreme Court Justice Roslyn Atkinson, sexual assault survivors, and even those within Labor's own ranks calling for change.
"Queensland has the most outdated consent laws in the country and it's time to act," LNP leader Deb Frecklington said, pledging a complete rethink of Queensland's mistake of fact defence in rape and sexual assault cases.
"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 (to the Queensland Law Reform Commission), then the LNP will."
Queensland's mistake of fact defence allows perpetrators in rape and sexual assault cases to argue even if the a victim did not consent to sex, they mistakenly believed they had.
In other Australian states, laws provide extensive lists of circumstances where a person is not consenting to sex, including remaining silent.
A rape survivor, who cannot be named for legal reasons, reported to police she was violently attacked outside a pub on the Gold Coast several years ago.
She yesterday told The Courier-Mail officers told her the mistake of fact defence would be used to discredit her story as the man allegedly involved in the rape claimed she consented to the sex.
Her investigation remains open but no one has been charged.
"We really need these laws to be changed and I want to fight now to prevent what has happened to me happening to other women," she said.
"Even before it gets to court these laws prevent people being charged."
Brisbane author of the book Eggshell Skull Bri Lee said she could not understand why Labor had not yet brought the laws into line with other Australian states.
"Referring consent and the mistake of fact defence to the Queensland Law Reform Commission (QLRC), it's not even radical, and the Attorney-General's continuing delay on this is just showing a real lack of care," she said.
Ms Lee, who is a survivor of sexual assault, said several Labor MPs had indicated their support for reform but said their hands were tied.
Ms Lee and Bond University professor Johnathan Crowe in May sent about 100 handwritten letters from sexual assault survivors and supporters to Ms D'Ath.
She said the group each received "a copy and paste proforma response" that started with the words: "Thank you for your email".
"There was so much disappointment, disbelief, real anger and sadness as they felt like so many people had poured their hearts out. Since then there has been nothing done," Ms Lee said.
The defence has been used cases where an accused was so intoxicated they "thought" the victim was consenting, when the victim was so intoxicated that they were comatose and legally incapable of giving consent and when the accused reasonably believed the victim wanted sex because of their social behaviours like flirting with the accused, Ms Frecklington said.
It has also been used in cases where a victim "freezes" - which is a recognised as a common psychological response to a violent attack.
"Such a low number of complainants go to the police and there is such a high level of attrition though the system and in the end even if you get to a trial there a low conviction rate," Women's Legal Service chief executive Angela Lynch said.
"It is a crime with little accountability and the issue of the mistake of fact in Queensland exacerbates those issues and allows the perpetrator's perspective to be front and centre."
Retired Justice Roslyn Atkinson earlier this year publicly announced her support to reform the mistake of fact defence in rape cases, saying current laws did not reflect community attitudes.
LNP Shadow Attorney-General David Janetzki said the mistake of fact was setting "an alarming precedent and denying victims justice".
Labor's Left faction is readying for a fight on the issue at the party's state conference next month, angered the defence has still not been referred to the QLRC after members voted unanimously and cross-factionally at last year's party conference for it to be done "as a mater of priority".
The Left has begun a campaign on social media calling for change and are planning to move a motion at the conference to force the Government's hand.
Attorney-General Yvette D'Ath has indicated she is close to revealing what action she will take on the issue.
"The Palaszczuk Government is considering the views of Queensland's foremost legal stakeholders and reviewing dozens of Court of Appeal judgments handed down since the definition of consent was previously amended almost 20 years ago," Ms D'Ath has said.