Lawyer’s bid to overturn get-out-ofjail rape rule
In his fight for reform to protect victims, Bond University law professor Jonathan Crowe is taking on the legal establishment to tighten ‘mistake of fact’ laws that have allowed rapists to walk after claiming there was consent
THE woman lay in a Surfers Paradise hotel, intoxicated, vomiting and incoherent. When she awoke, it was to stabbing pain.
And then she realised. She was being raped.
She took her complaint to police and the matter went all the way to Southport’s District Court, where the accused was convicted and sentenced to five years.
But just 16 months later, the Supreme Court ruled he was allowed to appeal, based on a contentious rape defence allowed in Queensland: “mistake of fact’’. Given his own inebriation, as well as hers, the judges ruled the man could argue an “honest but mistaken’’ belief in her consent … even despite his initial defence that no sexual intercourse had ever occurred.
Welcome to the world of rape law in Queensland.
Even when you win, you lose.
But after 120 years, we could be about to make legal history.
And it’s thanks in no small part to Bond University professor of law Dr Jonathan Crowe.
Working with law graduate, author and activist Bri Lee, his former student, the pair coauthored the most detailed academic study of the “mistake of fact’’ defence.
Six months ago, the Queensland Government agreed to refer consent and “mistake of fact’’ laws to the Law Reform Commission for expert advice on how to change them.
After 15 years fighting to change rape law, Prof Crowe is now calling on the public to use their voices to stop victims from being silenced.
Public submissions on the proposed law reforms are open until the end of the month, with actual changes expected by mid-year.
“This is our chance to have our say, to make a difference and to have our laws reflect who we are as a society. This is a chance to take back some of the control,’’ he says.
“Consent law in Queensland can be complicated. We actually have quite a comprehensive, progressive definition of consent, but the ‘mistake of fact’ excuse undermines and contradicts that definition. It allows defendants to benefit from old attitudes and rape myths, undoing the practical effects that society’s changing attitudes toward consent have had on the definition itself.
“The ‘mistake of fact’ excuse undermines the law’s attitude to free and voluntary consent. Consent cannot be established merely by pointing to the complainant’s social behaviour, level of intoxication or lack of physical resistance. However, all these factors have been used to benefit defendants who say theirs is a ‘mistake of fact’ situation.
“(In the above case), for example, according to the majority appeal judges, the bar for establishing an honest but mistaken belief in consent is lower for a defendant who is intoxicated than one who is sober.
“Compare this to the strict liability of the actions of drunk drivers, where the law does not accept intoxication as an excuse or mitigation of bad behaviour.
“Anyone who looks at the evidence can see that it is beyond time for change.
“I have been fighting against this for 15 years. I’ve made three formal submissions to three different Queensland governments.
“We have to make this count.”
Prof Crowe says he is disappointed but not surprised by the response of the Queensland Law Society and the Queensland Bar Association to the proposed changes, with both groups advocating for the status quo to remain in regards to rape law.
He says both groups are conservative and cautious by nature.
“It is true that the legal profession is generally concerned about changes to criminal law, which is justified in some cases. But in this case the evidence is there that there have been serious and multiple miscarriages of justice.
“The research that Bri and I have completed is pretty comprehensive and builds up a very concerning picture where this excuse is being used.
“There are cases where offenders have violently assaulted their sexual partner and yet still relied on mistake of fact. There are too many cases showing the complainant was asleep or unconscious, yet still the defendant is able to argue he made a mistake that consent was given.
“There are cases where the complainants had mental or physical disabilities or where they did not speak English.
“I think there’s a public perception that the mistake of fact excuse is being used when there is a genuine miscommunication, but from our research it is very far from that picture. It’s very concerning.
“It is frustrating, the response from law associations. We should be just as worried about victims being penalised as we are about false convictions.
“However, Bri and I argue in our submission to the Law Reform Commission that this defence should be narrowed in scope, not abolished altogether.”
Prof Crowe says working on reforming rape laws has been an emotionally draining project, but one in which he takes pride.
However, he says achieving actual changes would be a bittersweet triumph.
“Last year, when these issues were referred to the Law Reform Commission, both Bri and I felt so emotional … it was such a long road to get there and very emotionally draining. When we finally see some reform, I can only imagine the relief and satisfaction.
“But at the same time, there is just that sense of sadness for the victims who were denied justice because of the overuse of this defence. You get one shot, and theirs was wasted.
“We have to remember too that this is just one small part of the picture as far as sexual assault is concerned. Not only are there other legal issues, but
‘We should be worried about victims being penalised’
wider cultural issues as well.
“Evidence shows that one in five women have been raped or sexually assaulted. If it was the case that one in five people were murdered or bashed, it would be a massive public safety issue.
“Yet rape and sexual assault tends to be swept under the carpet. We don’t recognise the seriousness of it as we should. Just look at the barriers faced by victims trying to take their complaints to court. Fewer than 20 per cent of assaults are actually reported to police, and at every step from reporting to prosecution and trial, that figure gets smaller and smaller.
“Yet to those one in five women, this is more than a safety issue – they are living in fear. But we aren’t listening as a society. It is truly outrageous that as a society we have let it get to this point.
“But so many people are in denial. Some of the responses that Bri and I received from our report were quite vitriolic and personal. The locus of control is slowly shifting, and it’s frightening for some people.”
While it seems a matter of fact that “mistake of fact’’ laws will be changed, it is only the start of Prof Crowe’s efforts to change legal and social constructions.
He will be part of next month’s launch of the Rape and Sexual Assault Research and Advocacy Group in Melbourne, along with Dr Rachael Burgin from Swinburne University as well as Saxon Mullins, the woman who sparked a national debate on consent after Luke Lazarus, the man convicted of raping her, had his conviction overturned.
“Mistake of fact is only the start. This is a heavy space to work in, but we need people willing to do that – other than the victims themselves.
“At this centre we hope to continue doing this research and really push for reforms all around Australia.
“We need reforms in Queensland in the definition of consent especially.
“We want to move towards affirmative consent, where it’s an ongoing conversation where anyone involved in a sexual encounter has a responsibility to ensure their partner is comfortable and participating and happy to proceed. Consent is not something that can be assumed and not just a matter of being granted once. The whole idea of true consent is something that is an ongoing cultural issue. At the moment there’s not always a lot of respect happening, and that’s what consent is all about.
“That’s the overlap between sexual assault law and issues of justice. It’s about treating people ethically in sexual relations.
“There are just so many people impacted by sexual assault. When you start talking to women about this topic, you realise that every woman has a story, whether it’s harassment, sexual assault or unwanted advances. This is the reality of many people’s lives.
“It is emotionally draining to do this sort of work and I’m so thankful to have a community of researchers to work with, especially Bri.
“With my students at Bond as well, these issues have huge impact on their lives. Whenever I raise and discuss these laws with them, they are so interested and passionate – especially young women – they can see how this matters to them. I want to empower them to see how the law can help them.”
Make no mistake, it’s time for change.
And that’s a fact.
‘There are just so many people impacted by sexual assault’