[1] Sections 349 and 352 of the Criminal Code provide for offences of rape and sexual assault respectively. These offences are found in Chapter 32 of the Criminal Code.
[2] A key element that must be proved for an offence of rape or sexual assault is that the act constituting the offence was done by the defendant without the complainant’s consent. This is expressly required by the text of section 349 for an offence of rape. The text of section 352(1)(a) does not expressly do so, but an assault within the meaning of that section is defined in section 245 in a way that requires absence of consent. However, section 245 is not in Chapter 32.
The definition of ‘consent’—section 348
[3] 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 in the following way:
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.
The excuse of mistake of fact—section 24
[4] For an offence of rape or sexual assault, a defendant may be excused from criminal responsibility for the offence if the act otherwise constituting the offence was done under an honest and reasonable, but mistaken, belief that the complainant gave consent. 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.
[5] Section 24 applies to all persons charged with any criminal offence againstthe statute law of Queensland. It may, therefore, apply to an offence of rape or sexual assault.
TERMS OF REFERENCE
[6] The terms of reference required the Commission to conduct a review of the operation and practical application of the definition of consent in section 348 and the operation of the excuse of mistake of fact under section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code, and to recommend whether there is a need for reform of those and any other matters the Commission considers relevant.
[7] The terms of reference required consultation with a range of classes of stakeholders and the public generally.
CONSULTATION
[8] To assist with the preparation of its Consultation Paper, the Commission invited preliminary submissions on the issues raised in the review from the judiciary, legal stakeholders, academics and organisations representing the interests of victims and survivors. Some members of the public also provided the Commission with their preliminary views.
[9] The Commission then released a detailed Consultation Paper outlining the key issues raised in the review and called for submissions on a number of specific questions.
[10] The Commission received 87 submissions from respondents including legal professional bodies, community legal centres, academics, individuals who had experienced sexual violence, organisations that support and represent victims and survivors of sexual violence, and members of the public.
[11] In addition, the Commission held a consultation workshop with representatives from organisations that support and represent victims and survivors of sexual violence, as well as victims and survivors who wished to attend.
[12] The submissions to the review raised many issues and reflected a wide range of views. Some of the matters raised were outside the scope of the Commission’s terms of reference.
ANALYSIS OF TRIAL TRANSCRIPTS AND APPEAL DECISIONS
[13] The Commission examined a large number of rape and sexual assault trials and appeals in Queensland for the purpose of achieving an evidence-based analysis of how the laws to be reviewed are operating in practice.
[14] First, the Commission undertook a detailed quantitative and qualitative analysis of transcripts of all criminal trials of rape or sexual assault completed in the 2018 calendar year (excluding trials that involved a complainant under 12 years of age) —a total of 135 trials (the ‘2018 Trials’). This examination of transcripts involved the collection of information about the conduct of the trials (including lines of defence and whether mistake of fact was left to the jury) as well as matters given in evidence and trial outcomes. The findings have provided valuable information about the operation of the definition of consent and the excuse of mistake of fact as it applies to rape and sexual assault in Queensland. They are detailed in Chapter 3.12
[15] Second, the Commission undertook a qualitative analysis of relevant Queensland Court of Appeal decisions in rape and sexual assault matters principally between 2000 and 2019. Those appeal decisions have informed the Commission’s consideration of the issues in the review.
[16] Third, the Commission also undertook a qualitative review of the transcripts of a further 76 trials (in which consent or mistake of fact was raised) which were referred to the Commission, at its invitation, by the judiciary, the Office of the Director of Public Prosecutions, Legal Aid Queensland and the Bar Association of Queensland. That examination sought to identify, but did not reveal, any significant issues with the operation of the law which were not highlighted by the analysis of the 2018 Trials. Consent was not in issue in any of those 28 trials because s 349(3) of the Criminal Code (Qld) provides that a child under 12 years of age is incapable of giving consent for s 349. In the review of trial transcripts, outlined in Chapter3 below, the Commission generally separates trials involving complainants over 16 (‘Adult complainants’) and trials involving complainants aged 12 to 15 (who, for the purpose of Chapter 3, are referred to as ‘Child complainants’).
Principles underpinning the review
[17] A primary purpose of the criminal law in the present context is to punish serious breaches of sexual autonomy.
[18] The Commission’s starting point for the review was that the criminal law regarding consent should support the objective of protecting sexual autonomy. It is desirable that the law reflect a contemporary standard of what is required in relation to consent.
[19] However, there are limits to what the criminal law is practically and properly able to achieve in terms of changing social practices. Sexual offences occur within a broad social context and raise complex issues that go beyond the criminal law on consent. Legislative amendment is only one means of addressing these issues.
[20] The Commission is mindful of the importance of the fundamental principles of a fair trial, including the presumption of innocence. It is necessary to balance those principles with the protection of complainants’ rights. Any changes to the legislation should be careful to avoid unnecessary or unjustified erosion of those principles.
[21] The law regarding consent needs to be clear, for judges and juries as well as for the wider community.
[22] Reforms should, where possible, be informed by available empirical evidence.
APPROACHES IN OTHER JURISDICTIONS
[23] Other jurisdictions make provision for offences equivalent to the offences of rape and sexual assault in Queensland, although there are some differences. A comparative table summarising the legislative provisions in Queensland and other jurisdictions, and the provisions of the Commission’s proposed draft Criminal Code (Consent and Mistake of fact) Amendment Bill 2020, is set out in Appendix C.14
[24] The Commission has considered the approaches and relevant law reform reports of other jurisdictions, both within Australia and internationally, in informing itself about appropriate reforms. These are listed in Appendix D.
The Commission's conclusions and recommendations nations in summary are -
[25] Overall, the Commission does not recommend extensive changes to the existing law regarding consent for the offences of rape or sexual assault or the excuse of mistake of fact in relation to those offences. Its detailed review of the operation of the existing law did not support the conclusion that there should be extensive changes. There are some significant differences in the way rape and sexual assault offences, and the defence or excuse of mistake of fact, are structured and operate between the code and common law jurisdictions.
[26] However, in the Commission’s view there should be some amendments that will clarify, reinforce and update the current operation of the law. It has made five recommendations for amendments to the Criminal Code.
DEFINITION OF CONSENT
[27] The Commission considered a number of issues relevant to consent, as set in Chapter 5 and summarised below.
Affirmative consent model
[28] Some respondents to the consultation process have suggested that the law should adopt an ‘affirmative consent’ model. Definitions and descriptions of an ‘affirmative consent’ model vary.
[29] In the Commission’s view, two significant aspects of the existing law reflect an affirmative consent model, namely: (a)consent is a state of mind, but must also be ‘given’ (that is, communicated); and (b) mere failure to manifest an absence of consent by words or actions is not sufficient for consent to be given.
[30] The Commission recognises, however, that these aspects may not be widely understood in the community. This may be due to their presence in case law rather than in the express terms of the Criminal Code.
[31] The Commission recommends that a new subsection be inserted in section 348 of the Criminal Code to provide that a person is not taken to give consent to an act only because, at or before the time of the relevant act, the person does not say or do anything to communicate that they do not consent to that act.
[32] Otherwise, the Commission does not consider that section 348 should be amended to give effect to an ‘affirmative consent’ model.
Consent and sexual assault
[33] The offences of rape, assault with intent to commit rape and sexual assault are contained in Chapter 32 of the Criminal Code, in sections 347, 351(1) and 352(1) respectively. By section 347, consent in Chapter 32 has the meaning given to it by section 348. However, the term ‘consent’ is not used in section 351 or section 352(1)(a). Absence of consent is, however, an element of each offence. This is because assault is an element of each offence. For the purposes of the Criminal Code, ‘assault’ is defined in section 245 as occurring where a person applies force to another, directly or indirectly, without the consent of that other person.
[34] The Commission recommends that section 347 of the Criminal Code be amended to apply the definition of ‘consent’ in section 348 to the offences provided for under sections 351(1) (assault with intent to commit rape) and 352(1)(a) (sexual assault). This will ensure consistency in the meaning of consent for all offences of rape and sexual assault under Chapter 32.
Withdrawal of consent
[35] In the Commission’s view, the existing law operates so that a person who initially consents to an act but subsequently withdraws consent and communicates the withdrawal, before or during the act, does not consent. An offence of rape or sexual assault can arise from the point at which consent is withdrawn and that withdrawal is communicated.
[36] However, no express provision is made in section 348 that if an act is done after consent to the act is withdrawn the act is done without consent.
[37] The Commission therefore recommends that section 348 of the Criminal Code be amended to provide that, if an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent. The withdrawal of consent must be communicated in some positive way, ‘by words or conduct’, so that once the other person is made aware that consent, initially given, is withdrawn, they have the opportunity to respond to that withdrawal by ceasing to engage in the relevant act.
CIRCUMSTANCES WHEN CONSENT IS NOT FREE AND VOLUNTARY
[38] The effect of section 348(1) is that for an offence of rape or sexual assault ‘consent’ is only given if it is given ‘freely and voluntarily’. Without limiting the operation of those words, section 348(2) provides expressly for circumstances where consent is not freely and voluntarily given. The Commission considered whether there was any need to amend section 348(2), as set out in Chapter 6 and summarised below. Existing circumstances under section 348(2) in which consent is taken not to have been freely and voluntarily given
[39] The existing list of circumstances in section 348(2) is non-exhaustive and expressed in broad terms. Broad terms can be applied in accordance with community standards or expectations. They avoid the inflexibility that the application of more specifically defined circumstances can bring. In the Commission’s view, changes to section 348(2) are unnecessary. A more extensive and specific list might produce unanticipated and unsatisfactory outcomes.
Consent obtained in circumstances where the complainant is asleep, unconscious or affected by alcohol or another drug
[40] For an offence of rape, section 348(1) requires that ‘consent’ be given ‘by a person with the cognitive capacity to give the consent’. A complainant who is asleep or otherwise unconscious does not have, and a person affected by alcohol or drugs may not have, the cognitive capacity to give consent.
[41] The Commission has recommended that section 347 of the Criminal Code be amended to apply the definition of ‘consent’ in section 348 to offences of sexual assault. Assuming that recommendation is adopted, it is unnecessary to amend section 348(2) or make any other amendment to deal more specifically with circumstances that go to cognitive capacity for offences of rape or sexual assault.
Consent obtained by a mistaken belief, induced by the defendant, that there will be monetary exchange for the sexual act
[42] For an offence of rape, where consent is given in exchange for a promise of payment or some other reward a question may arise under section 348(1) whether consent was not freely and voluntarily given. Only if the promise can be characterised as a false and fraudulent representation about the ‘nature or purpose of the act’ should section 348(2) deem the consent not freely and voluntarily given.
[43] Further, section 218 provides that a person who by a false pretence procures another person to engage in a sexual act commits an offence. Section 408C provides that a person who dishonestly induces another person to do any act which that person is lawfully entitled to abstain from doing commits an offence of fraud. However, neither of those offences is contained in Chapter 32 of the Criminal Code.
[44] This issue raises broader policy questions about the regulation and protection of sex workers, and their experiences within the criminal justice system, that are outside the scope of the Commission’s review. Accordingly, it does not recommend any amendment to section 348(2) of the Criminal Code to deal specifically with this circumstance.
Consent obtained but the defendant fails to use a condom as agreed or sabotages the condom
[45] The Commission shares the view expressed in the submissions that the sabotage or removal of a condom without the other party’s consent is a concerning practice. It is aware of at least one instance where such an act has been prosecuted as rape in Queensland.
[46] There may well be merit in making this practice an offence in its own right. However, the Commission does not recommend an amendment to section 348(2) of the Criminal Code to deal with such circumstances.
Consent obtained by a mistaken belief, induced by the defendant, that the defendant does not suffer from a serious disease
[47] Present public health and criminal laws indirectly deal with circumstances where a complainant consents to a sexual act under a mistaken belief, induced by the defendant, that the defendant does not suffer from a serious disease.
[48] Section 143 of the Public Health Act 2005 provides that a person must not recklessly put someone else at risk of contracting a controlled notifiable condition. Those conditions include HIV and some other sexually transmitted diseases. Section 317 of the Criminal Code provides that any person who, with intent to transmit a serious disease, transmits a serious disease to another person commits an offence. Neither of these sections is within Chapter 32. The offences they provide for are not directed to sexual activity as such, either with or absent consent, but either offence can apply to such conduct.
[49] The Commission considers that the existing laws achieve a reasonable balance between public health measures and criminal law interventions for transmission of a serious disease. Section 348(2) of the Criminal Code should not be amended to include consent obtained under a mistaken belief, induced by the defendant, that the defendant does not have a serious disease as consent not freely and voluntarily given. Consent obtained in circumstances of domestic and other violence
[50] Offences of rape or sexual assault commonly occur in a context of domestic violence.
[51] Section 348(2)(a)–(c) of the Criminal Code provide that a person’s consent to an act is not freely and voluntarily given if it is obtained by force, threat or intimidation, or fear of bodily harm. These provisions are raised when an offence of rape or sexual assault occurs in a context of domestic violence.
[52] Further, the existing law permits reception of evidence of domestic violence in a relationship where it is relevant; for example, where there is conduct which might go to whether consent was given freely or voluntarily or which might be capable of explaining aspects of the complainant’s evidence which the jury might otherwise have considered unlikely.
[53] In the Commission’s view, the existing laws in Chapter 32 do not require amendment to address the concerns raised about rape and sexual assault in the context of domestic violence.
EXCUSE OF MISTAKE OF FACT
[54] For an offence of rape or sexual assault, the excuse of mistake of fact under section 24 of the Criminal Code applies where the defendant does an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act.
[55] The Commission considered a number of issues relevant to the excuse of mistake of fact for an offence of rape or sexual assault, as set out in Chapter 7 and summarised below. Application of the excuse of mistake of fact to Chapter 32 offences [56] Section 24 is a provision that has general application to all criminal offences.
[57] In the Commission’s view, there is no justification to exclude Chapter 32 offences from the potential operation of the excuse of mistake of fact. To do so would discriminate against defendants charged with those offences, as against defendants charged with other serious offences.
Onus of proof and the excuse of mistake of fact
[58] A fundamental principle is that the onus of proof in criminal proceedings rests with the prosecution. For an offence of rape or sexual assault, the prosecution must prove every element of the offence, beyond reasonable doubt. Further, if mistake of fact as to consent is raised on the evidence, the prosecution must prove, beyond reasonable doubt, that the defendant did not honestly believe that the complainant gave consent or that any such belief was not reasonably held.
[59] The Commission has carefully considered the arguments for and against reversing the onus of proof for the excuse of mistake of fact onto a defendant charged with an offence under Chapter 32 of the Criminal Code. It has concluded that there is no adequate justification for reversing the onus of proof. The interests of justice are best served by maintaining the status quo, which in the Commission’s view strikes the right balance between the rights of the individual and the wider interests of the community.
Reasonableness of a defendant’s belief
[60] To constitute an excuse, the defendant‘s mistaken belief as to consent must be both honest and reasonable. Under the existing law, in considering what is reasonable, fairness demands that a person be judged not by what would be reasonable for a hypothetical ordinary person but by a standard that asks what was reasonable for the defendant in their actual circumstances. Features such as intellectual disability, mental illness and language difficulties are examples of disadvantages of a defendant that would be excluded from consideration by a jury if a hypothetical reasonable person test was adopted without reference to a defendant’s actual circumstances.
[61] In the Commission’s view, the existing law strikes the right balance between the competing considerations of the requirement of reasonableness as a limit on the availability of mistake as to consent as an excuse and fairness that a defendant should be judged having regard to their actual circumstances.
Consideration of what if any ‘steps’ or ‘reasonable steps’ the defendant took to ascertain consent
[62] The excuse of mistake of fact in section 24 of the Criminal Code does not expressly require consideration of the steps, or reasonable steps, taken by a defendant to ascertain that the complainant gave consent. However, when the excuse of mistake of fact is raised, a jury is able to consider any steps that were taken (or that no steps were taken, depending on the facts of the case), in considering whether the defendant honestly and reasonably believed the complainant consented.
[63] The introduction of a steps, or reasonable steps requirement, to qualify the operation of section 24, before the excuse of mistake of fact can be relied upon, could operate unfairly. Not all situations where a defendant may honestly and reasonably believe that a complainant is giving consent will alert a defendant to the need to take steps to ascertain the fact of consent.
[64] The Commission recommends that a new provision be introduced into Chapter 32 of the Criminal Code that, for an offence under that Chapter, in deciding whether a defendant acted under an honest and reasonable, but mistaken, belief as to consent, the circumstances that may be taken into account include what, if anything, the defendant said or did to ascertain whether the complainant gave consent.
The way a defendant’s voluntary intoxication affects the assessment of excuse of mistake of fact as to consent
[65] Commonly, an alleged offence of rape or sexual assault is prosecuted in circumstances where the defendant was intoxicated by alcohol or a drug at the time of the alleged offence.
[66] The Criminal Code does not expressly provide that either intoxication or voluntary intoxication is relevant to whether a defendant’s mistaken belief that the complainant gave consent was honest and reasonable. However, under the existing law, voluntary intoxication is not relevant in determining whether a defendant’s mistaken belief as to consent was reasonable.
[67] Although the case law to this effect is clear, the Commission’s review of the 2018 Trials involving Chapter 32 offences suggests that position is not always made clear to the jury.
[68] The Commission recommends that a new provision be introduced into Chapter 32 of the Criminal Code to the effect that, for an offence under that Chapter, in deciding whether a defendant acted under an honest and reasonable, but mistaken, belief as to consent, regard may not be had, in deciding whether a belief was reasonable, to the voluntary intoxication of the defendant by alcohol, a drug or another substance.
Concept of ‘recklessness’ as to a defendant’s belief in consent
[69] In a number of Australian jurisdictions, it is an element of an offence of rape or sexual assault that the defendant knew the complainant was not consenting to the relevant sexual act, or was reckless as to the absence of consent. In Queensland an offence of rape or sexual assault does not contain that element. The only elements are that the relevant sexual act took place and that the act was done without consent.
[70] The existing law in Queensland does not expressly refer to the relevance of ‘recklessness’ on the part of a defendant. However, where the excuse of mistake of fact as to consent is raised on the evidence, the concept of ‘recklessness’ is accommodated within the question of whether the defendant acted under an honest and reasonable, but mistaken, belief that the complainant gave consent.
[71] The introduction of the concept of recklessness as an additional express consideration to be taken into account in assessing whether a defendant acted under an honest and reasonable, but mistaken, belief would not serve to clarify the existing law, is unnecessary and could cause complications.
[72] In the Commission’s view, since mistake of fact is an excuse under section 24 only where the defendant acts under an honest and reasonable, but mistaken, belief as to consent, the Criminal Code should not be amended to refer expressly to ‘recklessness’ as to the complainant’s consent for the offences of rape and sexual assault.
OTHER MATTERS
[73] The Commission considered a range of other relevant matters, as set out in Chapter 8 and summarised below. Preconceptions about rape and sexual assault [74] Recent research does not strongly support the concern that jurors commonly harbour false preconceptions or ‘rape myths’, or that any such preconceptions affect jury deliberation or verdicts. This research includes the recent 2017 National Community Attitudes towards Violence against Women Survey (‘NCAS’) and its report28 and recent research conducted over 2017–2019 in different regions of England, Wales and Northern Ireland which surveyed jurors from 63 criminal juries after trial.29 This research suggests that the influence of some of the suggested ‘rape myths’ may be overstated. [75] Accordingly, the Commission does not recommend any change to the existing law to deal with perceptions that jurors might harbour false preconceptions or that those false preconceptions might affect jury deliberations or verdicts.
Expert evidence
[76] Expert evidence about the nature and effects of sexual assault, of the kind envisaged by section 388 of the Criminal Procedure Act 2009 (Vic), is unlikely to be admissible under current laws in Queensland in a rape or sexual assault trial.
[77] The Commission is not persuaded, given recent research of jurors’ views, that juries are influenced in their decision-making by false preconceptions about rape or sexual assault or that where there is a need for jury guidance this is best achieved by making expert evidence admissible as provided by section 388 or some similar provision. There may be some practical difficulties with use of expert evidence of this kind. They include the availability of appropriate experts, the increase in the length of trials where there is an expert evidence issue and the associated impacts upon complainants and defendants.
[78] The Commission does not recommend that a provision authorising the receipt of expert evidence that does not meet the requirements for admissibility at common law should be introduced.
Statement of objectives and guiding principles
[79] In some jurisdictions, statements of objectives and guiding principles have been the subject of law reform commission recommendations or adopted in legislation. The objective of these statements is to counter the influence of false preconceptions said to influence the decision-making process at all levels of a prosecution for rape or sexual assault.
[80] The Commission is not persuaded that general legislative statements of objectives or guiding principles helpfully assist juries, who are the triers of fact in criminal trials, to evaluate factual issues in specific cases. Nor is it persuaded that such statements or objectives are needed, or would inform judges about the law to be applied by the jury in reaching its verdict or the admissibility of evidence.
Education and awareness
[81] The Commission recognises the importance of education about the law of consent and mistake of fact for both practitioners in the criminal justice system and the broader community. Changes to the law are sometimes complemented by educational and training material. However, the form and scope of any education program is a matter for the government and individual organisations. Accordingly, the Commission does not make any recommendations in relation to education ortraining programs about the law of consent and mistake of fact in respect of Chapter 32 offences.
OVERVIEW OF THE CRIMINAL CODE (CONSENT AND MISTAKE OF FACT) AMENDMENT BILL 2020
[82] The Commission’s draft Criminal Code (Consent and Mistake of Fact) Amendment Bill 2020 (the ‘draft Bill’) implements the Commission’s recommendations.
[83] The key features of the draft Bill are to amend the Criminal Code by:
- Inserting a new subsection in section 348 to provide that a person is not to be taken to give consent to an act only because at or before the time of the act the person does not say or do anything to communicate that the person does not consent to the act.
- Applying the definition of ‘consent’ in section 348 to the offences provided for under sections 351(1) (assault with intent to commit rape) and 352(1)(a) (sexual assault).
- Inserting a new subsection in section 348 to provide that, if an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.
- Inserting a new subsection in section 348 to provide that, for offences in Chapter 32, in deciding under section 24 whether a defendant did an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act, regard may be had to anything the defendant said or did to ascertain whether the other person was giving consent to the act.
- Inserting a new subsection in section 348 to provide that, for offences in Chapter 32, in deciding under section 24 whether a defendant did an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act, regard may not be had, in deciding whether a belief was reasonable, to the voluntary intoxication of the defendant by alcohol, a drug or another substance.
CHAPTER 5: CONSENT AND AFFIRMATIVE CONSENT
Not saying or doing anything to communicate consent
5-1 Section 348 of the Criminal Code should be amended to include a new subsection to expressly provide that a person is not taken to give consent to an act only because, at or before the time of the relevant act, the person does not say or do anything to communicate that they do not consent to that act. [See Draft Bill cl 5, inserting new s 348(3)]
The definition of consent and sexual assault
5-2 Chapter 32 of the Criminal Code should be amended to apply the definition of ‘consent’ in section 348 to the offences provided for under sections 351(1) (assault with intent to commit rape) and 352(1)(a) (sexual assault). [See Draft Bill cll 3, 4, inserting new definition of ‘assault’ for ch 32]
Withdrawal of consent
5-3 Section 348 of the Criminal Code should be amended to include a new subsection to expressly provide that, if an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent. [See Draft Bill cl 5, inserting new s 348(4)]
CHAPTER 7: THE EXCUSE OF MISTAKE OF FACT
Steps taken by a defendant to ascertain consent
7-1 The Criminal Code should be amended to provide that, for offences in Chapter 32, in deciding under section 24 whether a defendant did an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act, regard may be had to anything the defendant said or did to ascertain whether the other person was giving consent to the act. [See Draft Bill cl 6, inserting new s 348A(1)–(2)]
Intoxication of the defendant
7-2 The Criminal Code should be amended to provide that, for offences in Chapter 32, in deciding under section 24 whether a defendant did an act under an honest and reasonable, but mistaken, belief that the complainant gave consent to the act, regard may not be had, in deciding whether a belief was reasonable, to the voluntary intoxication of the defendant by alcohol, a drug or another substance. [See Draft Bill cl 6, inserting new s 348A(1), (3)]
