SET BAR HIGHER

FOR most crimes, ignorance of the law is no excuse. But in cases in which the defence excuse is “mistake of fact’’, it is argued a mistaken view of the facts is inconsistent with criminal purpose; in other words, there is no criminal intent.

Such has been the case time and again in rape trials, with defendants going free because juries have accepted the excuse – or could not decide – that a defendant believed the complainant consented. This is despite, as research by a Bond University team reveals, many victims having been violently assaulted, or been asleep or drunk to the point of unconsciousness, or have had mental disabilities.

As columnist Ann Wason Moore reports in The Interview (Pages 34-35), Bond law professor Jonathan Crowe and law graduate and author Bri Lee have made a detailed submission to the Law Reform Commission seeking to close what sexual assault advocates describe as an archaic legal loophole. Rather than abolish the defence altogether though, Prof Crowe wants it narrowed. This is understandable.

There are always cases in which a defendant genuinely believes he or she has a willing partner. But the bar for that defence has to be set much higher. Prof Crowe says ignorance of the law is no excuse in drink driving, for example. In such instances, the law does not accept intoxication as an excuse. So with research showing one in five women has been sexually assaulted, it is indeed time for a tightening of the “mistake of fact’’ excuse, and for respect to be key in relationships,