Loophole ‘lets rapists go free’
CONSENT laws need an overhaul to stop rapists and sexual offenders taking advantage of an archaic legal loophole to dodge conviction in Queensland, says a Gold Coast support service.
Gold Coast Centre Against Sexual Violence (GCCASV) director Di Macleod told the Bulletin the systems put in place to keep the community safe and hold offenders accountable are leaving rape victims worse off than before they sought justice.
People accused of sexual offending are able to use the century-old “mistake of fact” defence to argue even if a complainant did not consent to sexual activity, they honestly and reasonably – but mistakenly – believed consent was given.
Ms Macleod said the defence often led to an acquittal, if cases even made it to court.
“There can be secondary revictimisation by the very systems that are set up to keep people safe and hold offenders accountable,” she said.
“Our current laws are really not keeping pace with community expectations.
“It’s bad enough (victims) have gone through one trauma and we don’t want the processes to re-victimise or further traumatise them.”
Ms Macleod said the current consent laws perpetuated myths around rape and sexual offending.
“The way rape trials play out in the court, the scales of justice are certainly not balanced,” she said.
“There’s all of those false beliefs, like delayed reporting means you’re lying. Wearing certain clothing means you’re asking for it. Being drunk means you’re asking for it. No evidence of fighting back, well, you must have wanted it.
“These things come into play and the defence uses each one of them through the criminal justice defence and it’s very difficult to withstand cross examination in a rape trial.
“In fact, the research shows of all matters going to court, the cross-examination process is longest in rape trials.”
Queensland Attorney-General
Yvette D’Ath has referred the legal loophole to the state’s Law Reform Commission.
GCCASV made a submission during consultations, ahead of a report due on April 17.
The Queensland Law Society has backed the review but said it opposed changes to the consent laws. Past president Bill Potts said in September last year, when he was president, that “many in the legal profession were of the view there was no compelling evidence to warrant changes to existing laws”.
But Ms Macleod said: “We’re proposing an affirmative model, where someone has to get consent. Ask, don’t just assume.”