Consent

The Queensland Law Reform Commission consultation paper on Review of consent laws and the excuse of mistake of fact notes

The operation of consent laws in rape and sexual assault cases has attracted significant recent attention in Queensland and elsewhere. 

In July 2019, the Government announced that it would refer the matter of consent in rape and sexual assault cases to the Queensland Law Reform Commission (‘the Commission’), noting the importance of evidence-based reform. 

On 2 September 2019, the Attorney-General and Minister for Justice and Leader of the House referred to the Commission for review and investigation ‘the definition of consent in section 348 (Meaning of consent) in Chapter 32 (Rape and sexual assaults) of the Criminal Code and the operation of the excuse of mistake of fact under section 24 as it applies to Chapter 32’. 

The terms of reference require the Commission to examine the operation and practical application of those provisions and to make recommendations on:

(a) whether there is a need for reform of: (i) the definition of consent in section 348; (ii) the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code; and  

(b) any other matters the Commission considers relevant having regard to the issues relating to the referral.

In making its recommendations, the Commission is to have regard to:

(a) the need to ensure Queensland’s criminal law reflects contemporary community standards; 

(b) existing legal principles in relation to criminal responsibility; 

(c) the need for Queensland’s criminal law to ensure just outcomes by balancing the interests of victims and accused persons; 

(d) the experiences of sexual assault victims and survivors in the criminal justice system; 

(e) the views and research of relevant experts; 

(f) recent developments, legislative reform, and research in other Australian and international jurisdictions; and 

(g) any other matters that the Commission considers relevant having regard to the issues relating to the referral.

The consultation paper characterises the current law thus

The offences in Chapter 32 

Sections 349 and 352 of the Criminal Code deal with the offences of rape and sexual assault respectively. These offences are found in Chapter 32 of the Criminal Code. Section 349 provides:

349 Rape 

(1) Any person who rapes another person is guilty of a crime. Maximum penalty—life imprisonment. 

(2) A person rapes another person if— (a) the person has carnal knowledge with or of the other person without the other person’s consent; or (b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or (c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent. 

(3) For this section, a child under the age of 12 years is incapable of giving consent. 

(4) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.   

(5) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer. (note added) 

In order to establish the offence of rape, the prosecution must prove beyond  reasonable doubt that the defendant:  • had carnal knowledge of or with the complainant; and • did so without the consent of the complainant; or • penetrated the vulva, vagina or anus of the complainant with a thing or part of the defendant’s body that is not a penis; and • did so without the consent of the complainant; or • penetrated the mouth of the complainant with a penis; and • did so without the consent of the complainant. 

Penetration to any extent is sufficient. Both men and women may commit rape or be victims of rape. Penetration for the purposes of a proper medical, hygienic or law enforcement purpose is excluded. 

Section 352 of the Criminal Code deals with the offence of sexual assault. It provides: 

352 Sexual assaults 

(1) Any person who— (a) unlawfully and indecently assaults another person; or (b) procures another person, without the person’s consent— (i) to commit an act of gross indecency; or (ii) to witness an act of gross indecency by the person or any other person; is guilty of a crime. Maximum penalty—10 years imprisonment. 

(2) However, the offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in subsection (1)(a) or (1)(b)(i) if the indecent assault or act of gross indecency includes bringing into contact  any part of the genitalia or the anus of a person with any part of the mouth of a person. 

(3) Further, the offender is liable to a maximum penalty of life imprisonment if— (a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person; or (b) for an offence defined in subsection (1)(a), the indecent assault includes the person who is assaulted penetrating the offender’s vagina, vulva or anus to any extent with a thing or a part of the person’s body that is not a penis; or (c) for an offence defined in subsection (1)(b)(i), the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis. 

(4) The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for an offence against this section. 

(5) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer. 

Broadly, in order to establish the offence of sexual assault, the prosecution must prove beyond reasonable doubt that the defendant: • unlawfully assaulted the complainant; and • the assault was indecent; or • procured another person to commit or witness an act of gross indecency; and • did so without that person’s consent. 

The term ‘indecent’ is not defined in the Criminal Code. What constitutes indecency is to be judged by prevailing community standards. 

The term ‘assault’ is defined in the Criminal Code:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without the other person’s consent ... is said to assault that other person. (emphasis added)   

Chapter 32 of the Criminal Code also contains other offences, namely, attempt to commit rape (in section 350) and assault with intent to commit rape (in section 351). 

A key element that must be proved by the prosecution beyond reasonable doubt in order to establish the offences of rape and sexual assault is, therefore, that the conduct took place without consent. 

Consent 

Consent is relevant to a number of offences in the Criminal Code, but is defined only in respect of particular provisions. For the purposes of Chapter 32 of the Criminal Code, ‘consent’ is defined in section 348: 

348 Meaning of consent 

(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. 

(2) Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained— (a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representations about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner. 

Section 348(1) provides a definition of consent. Section 348(2) sets out a  list of circumstances in which a person does not give consent freely and voluntarily. The definition applies to the use of the word ‘consent’ in every offence contained in Chapter 32 of the Criminal Code, including rape. Strictly, it does not apply to the offence of sexual assault in section 352(1)(a) as that offence provision does not use the word ‘consent’. However, the courts continue to recognise the useful formulation of the list of circumstances in section 348(2) which may be relevant when directing juries in relation to the phrase ‘without the other person’s consent’ for the purposes of the sexual assault offence. 

The excuse of mistake of fact 

Proof beyond reasonable doubt as to absence of consent is central to proof of the offences of rape and sexual assault. There is, however, an excuse which may be available to a defendant at trial. Section 24 of the Criminal Code provides: 

24 Mistake of fact 

(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. (2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject. 

In the context of a trial of a charge of rape or sexual assault, a defendant who honestly and reasonably, but mistakenly, believed that the complainant was consenting is not criminally responsible. 

Criminal law practice and procedure 

Upon the making of a complaint to a police officer, a decision to prosecute the alleged offender must be made. In deciding whether or not to prosecute, a police officer must be satisfied that there is sufficient evidence and that the public interest requires a prosecution. In practice, it will rarely be the case that it is not in the public interest to prosecute an allegation of rape or sexual assault, so the primary test for the decision to prosecute is the sufficiency of evidence. A police officer must consider all aspects of the evidence to be presented, including admissibility and reliability of evidence and possible defences or excuses. These same issues will be considered by the Police Prosecution Corps or the Office of the Director of Public Prosecutions before a decision is made to continue a prosecution. 

In Queensland, trials for offences of rape and sexual assault will usually involve a judge and jury.  Relevantly, the role of the judge is to ensure the trial is conducted according to law. The role of the jury is to consider the evidence, apply the directions on the law given by the trial judge and return a verdict of guilty or not guilty. 

The verdict of the jury is to be reached only on the evidence heard during the course of the trial. Evidence consists of the oral testimony from witnesses and any exhibits received during the trial. In relation to the oral testimony of a witness, the jury can accept or reject all or part of a witness’s testimony. Generally, exhibits are documents, photographs, recordings and other materials relevant to the trial. 

The process of a trial commences with the prosecution addressing the jury in relation to the evidence expected to be heard from prosecution witnesses during the trial. Those witnesses are then called to give evidence. This process involves the prosecutor taking evidence-in-chief from the witness followed by defence counsel testing that evidence through cross-examination, for example, by identifying inconsistencies in a witness’s story and raising questions about their credibility. If necessary, the prosecutor is able to re-examine the witness for the purpose of clarifying the witness’s evidence. The same process is followed for each witness. 

Once the prosecution has presented its case, the defendant has the opportunity to give or call evidence. A defendant is under no obligation to give or call evidence. It is central to the criminal justice system that the prosecution must satisfy the jury that a defendant is guilty of a charge and guilt must be proven beyond reasonable doubt. The defendant is presumed to be innocent unless it is proven otherwise, and is therefore under no obligation to produce evidence at any stage of the trial process. If the defendant chooses to give or call evidence, the process will be the same as for prosecution witnesses. 

The term ‘beyond reasonable doubt’ is the standard to which a jury must be satisfied in relation to each element of an offence before they can convict a defendant of that offence. The concept of beyond reasonable doubt is a matter for a jury to determine. The Supreme and District Courts Criminal Directions Benchbook (the ‘Queensland Benchbook’) gives this guidance:  

Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities.” That is, the case must be proved to be more likely than not. 

In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt. 

It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences. If you are left with a reasonable doubt about guilt, your duty is to acquit: that is, to find the defendant not guilty. If you are not left with any such doubt, your duty is to convict: that is, to find the defendant guilty.

Once all witnesses have been called, the prosecution and defence will  address the jury and present arguments about the evidence given. The judge will then ‘sum up’ to the jury.  This involves explaining to the jury the law they are to apply to their deliberations and the issues that they are to consider.   

The jury is to return a verdict of guilty (convicted) or not guilty (acquitted) in relation to each charge. The jury must try to return a unanimous verdict.

In discussing consent the paper states

Consent plays a significant role in contemporary society across many domains of social life and, as a consequence, in many areas of the law. Relevantly, this includes the criminal law relating to sexual offences. 

Historically, rape offences were ‘aligned with women’s civil and legal status as the property of the dominant male family member’, and the ‘violent appropriation of women belonging to others’. In modern liberal society, rape and sexual assault offences are more often defined by the absence of consent within a broader context of recognition of individual rights of bodily integrity and human dignity.  This recognises that ‘[t]he essence of the wrong done is the violation of sexual autonomy rights’, namely, a person’s freedom from unwanted sexual interferences. 

There is a vast amount of academic literature on the philosophy and theory of consent. There is general consensus about the importance and role of consent, but the nuances and complexities of what consent may require in different situations is the subject of debate. 

Consent acts as ‘a criterion of legitimacy’, transforming an act or practice that might otherwise be impermissible into one that is sanctioned (at least so far as the consent aspect is concerned). 

Consent is also understood as ‘a transaction between two agents’, where one person’s consent releases the other person from a duty either to refrain from or to perform some action. 

Three main views about what constitutes consent are distinguished in the literature:  • Consent as a mental state where consent is a particular mental state or mental action of the consenting person (the mental view). Consent is distinguished from its communication. • Consent as a manifest act, that is, performing a positive act of consent, (the performative action view)—where there is no consent unless it is communicated in some way, whether verbal or non-verbal. • Consent as both a mental state and a manifest act (the hybrid view). 

To be effective, consent must be valid. Three conditions for valid consent are widely recognised:  • The consenting person must be ‘competent’ to do so (that is, they must have the requisite capacity to consent).•The consenting person must be ‘informed’ as to the nature of the matter to which they are consenting. • The consent must be free and voluntary (that is, it must not, for example, be coerced). 

Criminal responsibility where there is a lack of consent 

In the context of sexual offences, the giving of consent has not, for understandable reasons, been reduced to a formula and is often not indicated verbally or overtly, but rather by ‘conduct and implication’.  The complexity surrounding what should and should not be regarded as consent, and the need to ensure greater clarity over time, has been the subject of ongoing discussion. 

An important principle of criminal law is that criminal responsibility for an offence will ordinarily arise only if the defendant has acted in a wrongful or blameworthy way. 

Sexual intercourse without the other person’s consent is widely recognised as a criminal offence across many jurisdictions. However, it does not necessarily follow that a person who has sexual intercourse, honestly believing that the other person is consenting when they are not, should be liable to conviction for an offence. This is recognised in the availability of the excuse of mistake of fact under both the common law and in jurisdictions like Queensland where the criminal law has been codified.

The Commission seeks views on the following questions:

Q-1 What aspects, if any, of the definition of consent in section 348 and the excuse of mistake of fact in section 24 of the Criminal Code, as it applies to rape and sexual assault, give rise to particular concern or cause recurrent problems in practice? What is the basis of these concerns or problems? 

Q-2 What considerations and principles should be taken into account in determining whether the definition of consent in section 348 and the excuse of mistake of fact in section 24 of the Criminal Code, as it applies to rape and sexual assault, should be changed? 

Affirmative consent model 

Q-3 To what extent does the definition of consent in section 348 of the Criminal Code accord with community expectations and standards about the meaning of consent? 

Q-4 Should the definition of consent in section 348 of the Criminal Code be amended, for example, to expressly require affirmative consent? Why or why not? 

Q-5 If yes to Q-4, how should the definition be amended, for example: (a) by expressly including the word ‘agreement’? (b) by expressly providing that a person does not consent if the person does not say or do anything to indicate consent to the sexual act? (c) by expressly providing that a person must take steps or reasonable steps to ascertain that the other person is consenting to the sexual act (and that they must do so in relation to each type of sexual act involved)? (d) in some other way (and if so, how)? 

Q-6 What differences and what advantages or disadvantages might result from such changes?  

Withdrawal of consent 

Q-7 Should section 348 of the Criminal Code be amended to include an express provision that a sexual act that continues, after the withdrawal of consent, takes place without consent? Why or why not? 

Circumstances when consent is not freely and voluntarily given 

Q-8 Should section 348(2) of the Criminal Code be amended to extend the list of circumstances in which ‘a person’s consent to a sexual act is not freely and voluntarily given’? Why or why not? 

Q-9 If yes to Q-8, should the list of circumstances in section 348(2) of the Criminal Code be extended, to include: (a) where: (i) the person is asleep or unconscious when any part of the sexual act occurs; or (ii) the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual act? (b) where the person fails to use a condom as agreed or sabotages the condom? (c) where the person agrees to a sexual act under a mistaken belief (induced by the other person) that the other person does not suffer from a serious disease? (d) where the person consents to a sexual act under a mistaken belief induced by the other person that there will be a monetary exchange in relation to the sexual act? 

Q-10 Should other specific circumstances be included in section 348(2) of the Criminal Code? If so, what should they be? 

Q-11 If yes to Q-8 to Q10, what differences and what advantages or disadvantages might result from any changes? 

The operation of section 24 

Q-12 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code, as it applies to the question of consent in rape and sexual assault? Why or why not? 

Q-13 Where the excuse of mistake of fact as to consent is relied upon in rape or sexual assault, should the onus of proof: (a) remain unchanged, so that it is for the prosecution to disprove the defendant’s mistaken belief; or (b) be changed, so that it is for the defendant to prove the mistaken belief was honest and reasonable? Why or why not? 

Q-14 If the onus of proof were changed, what advantages or disadvantages might result? 

Recklessness 

Q-15 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code to introduce the concept of ‘recklessness’ with respect to the question of consent in rape and sexual assault? Why or why not? 

Q-16 If yes to Q-15, how should this be achieved? For example: (a) Should the excuse of mistake of fact be excluded if the defendant was reckless as to whether or not the complainant was consenting? (b) Should ‘recklessness’ be defined in the Criminal Code and, if so, how? 

Q-17 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 

Reasonable steps 

Q-18 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code to require a person to take ‘steps’ or ‘reasonable steps’ to ascertain if the other person is consenting to the sexual act? Why or why not? 

Q-19 If yes to Q-18, how should a ‘steps’ or ‘reasonable steps’ requirement be framed? For example: (a) Should the requirement be framed as a threshold test, to the effect that the excuse is not available to a person who did not take positive and reasonable steps, in the circumstances known to them at the time of the offence, to ascertain that the complainant was consenting to the sexual act?   (b) Alternatively, should the requirement be framed as a matter to be taken into account by the trier of fact when assessing whether a person’s mistaken belief as to consent was reasonable? 

Q-20 If a ‘steps’ or ‘reasonable steps’ requirement were introduced, should the Criminal Code specify what steps or reasonable steps should be considered? If yes, what should the specific steps or reasonable steps be? 

Q-21 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? For example: (a) Might a ‘steps’ or ‘reasonable steps’ requirement have the effect of reversing the onus of proof for a defendant? Why or why not?  (i) If a ‘reasonable steps’ requirement is introduced, should the onus fall on the defendant to show that they took steps or reasonable steps? (b) Might a ‘steps’ or ‘reasonable steps’ requirement unfairly exclude the availability of the excuse of mistake of fact to particular categories of defendants? Why or why not? 

Intoxication of the defendant 

Q-22 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code to specify in what way a defendant’s intoxication affects the assessment of mistake of fact as to consent? Why or why not? 

Q-23 If yes to Q-22, how should intoxication of a defendant operate in respect of the question of honesty and/or reasonableness of a defendant’s belief as to consent? 

Q-24 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 

Statement of objectives and guiding principles 

Q-25 Is there a need to amend the Criminal Code to introduce a ‘statement of objectives’ and/or ‘guiding principles’ to which courts should have regard  when interpreting provisions relating to rape and the sexual offences in Chapter 32 of the Criminal Code? Why or why not? 

Q-26 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 

Expert evidence 

Q-27 Is there a need for legislation to specifically permit the admission of expert evidence in trials of sexual offences in chapter 32 of the Criminal Code, subject to the discretion of the court? Why or why not? 

Q-28 If such amendment were to be made, what areas of expertise may be relevant? 

Q-29 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 

Education and awareness 

Q-30 Should there be public education programs to educate the community about issues of consent and mistake of fact?