Need for balance amid calls to get tough on crime
THERE are always strong emotions around sexual offending. Sexual crimes are devastating to the victims, their families and friends.
When reform is suggested to laws relating to sexual offences, it is often greeted enthusiastically by those professing the need to get tough on crime.
However, reform should be approached sensibly, informed by an evidence-based approach and not by anecdotes or accounts of personal trauma.
So the approach to the possible removal or redrafting of Section 24 of the Criminal Code – or the “Mistake of Fact” defence – must be considered carefully.
The role of this defence in sexual-assault matters has provoked debate.
It has been the law in Queensland for almost 120 years that a person is not criminally responsible for an act
done while under a mistaken belief that is honestly held and where there are reasonable grounds for that belief.
Barristers, who have significant experience both prosecuting and defending these sorts of cases, generally do not agree that the law needs to be changed.
It is not the common experience of members of the Bar Association that calculating, predatory, reckless or opportunistic offenders are avoiding criminal responsibility as a result of the current state of the law.
It is also not the case that defendants can simply claim that they thought the complainant was consenting because they were intoxicated and expect to be acquitted on that basis.
In fact, meritless attempts by defendants to rely on the defence routinely fail.
Contrary to some assertions, this law is well understood by Queensland juries.
The introduction of a test based on “recklessness” is unnecessary because a person who is reckless as to consent does not hold an honest belief. Even if they did, such a belief would not be reasonable if it were recklessly made or held.
As such, the defence would not succeed. As a consequence, a person could not make out the defence by establishing that they were indifferent to consent.
It is true that the prosecution of sexual offences is an extremely stressful time for those involved and an experience that stays with many for a lifetime. It is a trauma that cannot be ignored.
However, any changes to our long-established defences in the Criminal Code must be backed by clear evidence that change is required.
In relation to Section 24, there is an absence of clear evidence that the law in its present terms is contributing to miscarriages of justice.
Given this absence of evidence, the Bar Association does not currently support amendment of the Criminal Code.
If there is to be reform in this area, it ought to be the subject of considered, evidence-based decision-making.
The Queensland Law Reform Commission is well-placed to carry out such an analysis should the Government be considering genuine reform.