After 123 years, consent law breakthrough unfolds

Professor Jonathan Crowe.

Queensland’s sexual consent laws have allowed wrongdoers to evade justice for more than 120 years.

Using the controversial ‘mistake of fact’ excuse, accused rapists can argue they ‘honestly and reasonably’ believed the other person consented to sex, even if they did not. As a result, defendants have been acquitted because their victims were drunk, disabled, struggled with English or froze in fear.

But Bond University law Professor Jonathan Crowe says the second report from the Women’s Safety and Justice Taskforce, released today, offers hope that the state might close the loophole.

The taskforce made 188 recommendations to the Queensland Government for ‘essential reform’, including that the state adopt affirmative consent.

Professor Crowe has been campaigning for the change for more than 15 years and said he was in a ‘state of shock’ that laws first drafted in 1899 might finally be updated. 

“It looks like what (author and activist) Bri Lee and I have been advocating for many years is finally going to be put into place,” Professor Crowe said.

“Essentially what the report is recommending is that Queensland should follow the lead of New South Wales is adopting an affirmative consent standard and also limit the application of the mistake of fact excuse in rape.

“It proposes a requirement that you can't rely on a mistaken belief unless you can show that you've said or done something to find out if the other person is consenting.”

A previous attempt to reform the laws were stymied by a 2020 Queensland Law Reform Commission report.

Professor Crowe made a submission to that report, and also to the Women’s Safety and Justice Taskforce, chaired by Margaret McMurdo.

The taskforce recommends a community awareness and education campaign about sexual consent and to dispel rape myths.

“Victim-survivors told us they want changes to the law about sexual assault so the focus is on the actions of the accused person, not what the victim said, did, drank or wore,” Ms McMurdo said after the release of the report.

Professor Crowe said it was heartening to see the report clearly acknowledged rape myths still play a role in the way Queensland courts respond to sex crimes.

“That was something the QLRC report was heavily criticised for because it basically denied that rape myths play any role in Queensland trials,” he said.

“But the more recent taskforce report is clearly repudiating what the QLRC said about that.”

Queensland Premier Annastacia Palaszczuk said cabinet would consider the findings of the report ‘in the very near future’.