Quality Assurance

A perspective on law teaching and legal practitioner quality assurance is provided in 'Kicking the Can Down the Road — When Medical Schools Fail to Self-Regulate' by Sally A Santen, Jennifer Christner, George Mejicano and Robin R Hemphill in (2019) 381(24) The New England Journal of Medicine 2287-2289. 

The authors comment 

Every spring at U.S. medical school commencements, deans of student affairs and curriculum stand on stage, pledge along with the graduating class to do no harm and hood their students, shake their hands, and confer their medical doctorate degrees. All the while, they know in their hearts that there are one or two (or possibly more) of these new doctors whom they would not allow to care for their family. Aware of these students’ academic limitations or unprofessional behavior, the deans nonetheless allow them to graduate. We believe that allowing inadequate or inappropriate candidates to become doctors is unacceptable, and we cannot continue to neglect our responsibility in this way. 

It’s natural, of course, for some students to struggle and for medical schools to work with them to overcome their difficulties with academics or professionalism. Though there are no data on students, there is evidence that some unprofessional behavior on the part of practicing physicians can be remediated. In rare cases, however, students who are permitted to graduate despite unprofessional behavior go on to become disruptive or incompetent clinicians. 

 

It is our responsibility as physicians to care for our patients, and our duty as leaders in medical education to develop a competent workforce that will provide safe and compassionate care. Medical errors continue to be committed and to cause harm, and though most are attributable primarily to systemic problems, some result from a physician’s difficulty working in the system, inability to communicate, lack of knowledge, or unprofessional actions. 

 

In addition, a few physicians commit criminal or malicious acts; such incidents occur in medicine at a rate similar to that in other white-collar fields. Could we predict sooner that these doctors will behave unprofessionally? Evidence suggests that we could; physicians who are sanctioned by state medical boards are more likely than other physicians to have had their professionalism questioned previously, to have been identified as problematic by promotions committees, and to have performed poorly on tests. Yet medical schools continue to graduate students who should not be physicians. What are the incentives for promoting — and the barriers to dismissing — problematic students? ... 

 

Associate deans of education don’t always believe that the leadership of their medical school will support them in decisions to dismiss students. Such decisions are generally made by an academic review committee and managed by associate deans; they are often appealed to the dean, an executive committee, the university president, or other leaders, who may confirm or reverse them. These leaders may be rather removed from the details of student issues and, having their own pressures to contend with, may not endorse dismissal. They may also fear that dismissal will be perceived as a sign of the school’s failure to support its students. 

 

The medical school accreditation process requires reporting student attrition rates. Overall, the U.S. medical school attrition rate is low, with only about 3% of students failing to graduate for any reason, whether academic, professional, personal, or medical (see the Supplementary Appendix, available at NEJM.org). A higher-than-average rate of attrition or dismissal might raise red flags, affecting accreditation and recruitment. In medical schools outside the United States, a somewhat higher proportion of students (9% on average, internationally) do not finish their degrees, and attrition in other professional schools is quite a bit higher; students, faculty, and administrators of law schools (20% attrition, on average), nursing schools (10 to 50%), pharmacy schools (10 to 14%), and Ph.D. programs (up to 50%) seem to recognize that selection of candidates for professional schools is an imperfect process (see the Supplementary Appendix). Still, in light of the traditionally low attrition in U.S. medical schools, higher rates at a given school could well threaten its reputation. 

 

An additional strong disincentive to dismissal is the question of legal liability. It is rare for a medical school to lose a lawsuit related to dismissal; in general, the courts have decided that professions have the right and responsibility to sanction their own members, including students. The cases in which courts have not upheld dismissal decisions have involved schools’ deviation from their own due-process, recusal, and appeals policies. Nevertheless, each time a school considers dismissing a student, the risk of a lawsuit triggers involvement by the institution’s legal counsel, since students and their advocates may explore their legal options. Any litigation can take a protracted personal toll on faculty members and administrators, in addition to costing the school money for legal defense. 

 

Finally, we are inevitably uncomfortable about the degree of uncertainty in measurement. One of the most difficult problems with dismissing students is a lack of detailed data on which to base such decisions and the debatable accuracy and validity of the data that do exist. Often, faculty do not want to document unprofessional behavior that might hurt a student’s career. They rationalize that a single instance of unprofessional behavior is just a single instance. They may not know that the student has exhibited a pattern of such behavior elsewhere. Out of compassion, educators may choose to believe that the behavior merely reflects immaturity or a student’s slower-than-average growth trajectory. When faculty members refrain from documenting the problems that arise, it is difficult to amass adequate input for academic review committees to make decisions. 

 

The vast majority of U.S. medical students succeed, including those who struggle and undergo remediation. But when students clearly should not become doctors, shuttling them through to graduation has consequences. Some residency program directors have lost their trust in medical schools, knowing that their Medical Student Performance Evaluations and academic transcripts don’t accurately reflect students’ performance because negative comments may not be included, professionalism issues may be hidden, and a course failure may be replaced with a “pass” when the student receives remediation or retakes the course. 

 

We believe that medical schools will need to partner with accreditation bodies, create degree-granting off-ramps, and make some tough decisions. If medical educators examine their consciences, they will recognize the need to ensure that every student we graduate is someone we would allow to care for patients and our own families.

US Patents

The 104 page 'The Death of the Genus Claim' by Dmitry Karshtedt, Mark A Lemley and Sean B Seymore comments 

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim – a patent that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection.

 

But as we show in this article, the law has changed dramatically in the last twenty-five years, to the point where it is no longer possible to have a valid genus claim. Courts almost always hold them invalid. Remarkably, they do this without having acknowledged that they have fundamentally changed an important area of law. More remarkably, patent lawyers and patent owners don’t seem to have noticed. Invention, investment, patenting, and patent litigation continue much as they had before. It’s just that the patents that are the basis of all that activity are invalid.

 

We document this surprising shift in the law. We explain why we think it represents both bad law and bad policy. We also explain why it hasn’t seemed to matter, and what that fact says about the relevance of law more generally in governing business behavior.

Tasmanian Identity Reforms

The Tasmanian Law Reform Institute report on Legal Recognition of Sex and Gender discusses 

amendments to the Births, Deaths and Marriages Registration Act 1999 (Tas) and other matters relating to the legal recognition of sex and gender in Tasmania. ...  

 

The reference pre-dated the introduction and passage of the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) and sought advice more generally regarding the legal recognition of sex and gender. However, the TLRI has necessarily taken account of the recent passage of this legislation and framed its review on the basis of: whether the recent changes are functional and achieve their stated objectives; and what, if any, further reforms are needed to improve consistency with existing laws and human rights obligations.

The Institute concludes 

 the changes made by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) achieve the objective of reducing discrimination and trauma experienced by intersex and gender diverse Tasmanians by making it easier to obtain identification documents that accords with their gender identity.  ... [The] new laws are generally consistent with best practice international human rights approaches and approaches being considered in other Australian jurisdictions.

 

The TLRI was also asked to consider questions surrounding medical treatment on children, particularly as it relates to intersex children. An unresolved issue in Tasmanian law is the way intersex people are treated. This Report addresses surgical interventions on intersex children and the need to respect the right of children to have input into their own medical treatment. The issue of consent is especially important given the permanent impact, physical, mental and emotional, that can be caused by surgical interventions. This Report makes a number of recommendations intended to eliminate the practice of non-consensual surgical interventions and to enshrine existing legal principles regarding the capacity of children to consent, or not consent, to medical treatment. ....

 

By implementing these reforms, the TLRI believes that greater clarity in the law will be achieved, and that the rights of a frequently marginalised group will be better protected. This Report makes use of specific terminology relating to sex and gender, including the terms ‘sex’ and ‘gender’, in ways that may not be immediately familiar to all readers.

The Institute's Terms of Reference were 

In late 2018, the Attorney General, the Hon Elise Archer MHA, wrote to the Tasmania Law Reform Institute seeking its advice on several aspects of the law relevant to sex and gender. Accordingly, the Attorney General asked that the TLRI provide advice consistent with the following terms of reference: 

• Consider, with reference to laws in other Australian jurisdictions: what steps should be required in Tasmania to register a change of a person’s sex or a person’s intersex status on official documents; and what categories of sex and/or gender should be displayed on birth certificates and other documents. 
•  Review the law and make recommendations for any reforms in relation to consent to medical treatment to alter a person’s sex or gender. 
•  Review definitions and the use of terms relating to sex and gender in Tasmanian legislation and make recommendations for reform. 

The Institute's Recommendations are

Recommendation 1

 

The Tasmanian Government publish information resources and fund community awareness and education activities regarding amendments to the Births, Deaths and Marriages Registration Act 1999 (Tas).

 

Recommendation 2

 

The Long Title of the Births, Deaths and Marriages Registration Act 1999 (Tas) be replaced by the following: An Act to provide for the registration of births, deaths and marriages and to provide legal recognition for trans and gender diverse Tasmanians and those with intersex variations of sex characteristics.

 

Recommendation 3

 

An additional birth registration option, ‘Unspecified’, be made available to accommodate the needs of parents who, after 120 days, are not in a position to nominate the sex of their child as either male or female.

 

Recommendation 4

 

The Registrar of Births, Deaths and Marriages develop and publish guidelines addressing:

• what the Registrar should, and should not, consider in assessing and exercising their discretion to refuse applications; 

• what additional information can and cannot be requested; guidance as to relevant factors to be considered in satisfying themselves regarding a child’s ‘will and preference’, including the child’s capacity to understand; 

• the circumstances in which counselling should be requested, and the circumstances in which counselling is considered unnecessary; 

• a regularly updated list of gender descriptors, with a notation that the list is a guide rather than an exhaustive list; and 

• information and referral details that should be provided to applicants when the Registrar requests further information or evidence or rejects an application.

 

The TLRI recommends that these guidelines be developed in consultation with the trans, gender diverse and intersex communities, the Commissioner for Children and Young People and registries in comparable jurisdictions.  

 

The TLRI recommends that these guidelines be subject to regular review to ensure they are responsive to developments in the law, society and needs of the relevant communities.

 

Recommendation 5

 

The Tasmanian Government conduct an audit of: • all government and statutory board composition requirements; and • eligibility criteria for grant programs to clarify whether selection is intended to be on the basis of sex or gender.

 

Recommendation 6

 

The Tasmanian Government enact all recommended reforms identified in Column 3 of Appendix 3 to ensure that the terms ‘sex’ and ‘gender’ are used consistently and accurately and in accordance with the definitions introduced or amended by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas).

 

Recommendation 7

 

The Criminal Code should be reformed to criminalise non- consensual medical interventions in the following terms:

 

178F Unnecessary medical intervention to change the sex characteristics of children.

 

(1) Any person who performs a surgical, hormonal, or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless: (a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or (b) it takes place with the informed consent of the child.

 

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

 

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

 

Recommendation 8

 

That intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed. Provision to this effect should be made in the Civil Liability Act 2002 (Tas).

 

The informed consent of the child on whom the intervention is performed should provide a defence in such cases. However, consent itself should not be a defence if the intervention was performed negligently and the child did not voluntarily assume the risk of such negligence.

 

The primary remedy should be compensatory damages for harm caused by any medical intervention to alter sex characteristics that did not satisfy the relevant factors.

 

Recommendation 9

 

The Tasmanian Government enact a Consent to Medical Treatment Act that covers the field with respect to children’s consent to medical care.

 

The TLRI recommends that this Act should enable a child of 16 years or older to obtain medical treatment and undergo surgical procedures when they consent to treatment and surgical procedures. For children under 16, the TLRI recommends that Gillick competence be enshrined in this Act.

 

The South Australian Consent to Medical Treatment and Palliative Care Act 1995 may provide useful guidance in this regard.

 

The TLRI does not recommend that counselling be a mandatory precondition to children receiving medical treatment or undergoing surgical procedures.

 

Recommendation 10

 

The Government give consideration to including in the Consent to Medical Treatment Act proposed in Recommendation 9 all the reforms recommended in Part 3 of this Report. The Act would be comprehensive in providing the entire legal framework for surgical intervention to alter the sex characteristics of children.

Standing and Declaratory Relief

In Clarence City Council v Commonwealth of Australia [2020] FCAFC 1341 the Federal Court has considered declaratory relief. 

The Court states 

 The appellants in these two proceedings (Councils) are councils for municipal areas in the State of Tasmania. In these proceedings, the Councils seek to obtain declaratory relief in respect of the interpretation and application of contracts to which the Councils are not parties. The question for determination is whether they are entitled to do so. This raises interrelated issues concerning this Court’s jurisdiction and power to award declaratory relief, a party’s standing to obtain such relief, and the common law doctrine of privity of contract.

 

The appellant in the first proceeding, Clarence City Council, administers a municipal area covering the eastern suburbs of Hobart and surrounding localities. The appellant in the second proceeding, Northern Midlands Council, administers a municipal area that extends from the south of Launceston to the Tasmanian central midlands. Relevantly for the present case, the territories administered by the Councils include the Hobart International Airport and Launceston Airport (Airports) respectively.

 

Due to constitutional limitations, the Councils do not have power to levy rates or charges in respect of the sites covered by the Airports, which are owned by the Commonwealth. At the time of the privatisation of Australia’s federal airports in the 1990s, this was perceived to create a competitive imbalance between the operators of the Airports (amongst other newly privatised airports) and their actual or potential competitors. To implement a policy of “competitive neutrality”, the Commonwealth resorted to a contractual solution, which is now the subject of the present litigation.

 

The Councils seek declarations in respect of two separate leases (leases) between the first respondent in each proceeding, the Commonwealth, and the second respondents in each proceeding, the respective lessees of the Airports—Hobart International Airport Pty Ltd and Australian Pacific Airports (Launceston) Pty Ltd (collectively, Lessees). The leases include a mechanism to the effect that, where council rates and taxes are not payable by the Lessees because the Airport site is owned by the Commonwealth, the Lessees must pay to the relevant Council an amount, as notified by the Council, calculated according to certain parameters described in the leases. The Councils, however, are not parties to the leases.

 

As a result of events detailed in these reasons, the Councils (which are opposed in this respect by the Commonwealth and the Lessees) contend that the Lessees have failed to pay the Councils the amounts which the Lessees are obliged to pay under the leases. The dispute results from differing interpretations of the leases relating to the manner in which the payments are to be calculated. The difficulty for the Councils is that, despite being ostensible participants in (and purportedly intended recipients of benefits under) the leases, they are not parties to the leases and are accordingly not entitled to enforce the leases’ terms. In these circumstances, the Councils instead seek declaratory relief in this Court in respect of the interpretation and application of the leases.

 

However, the primary judge held that the Councils had no standing to seek such relief. According to his Honour, to grant the Councils standing in the present case would be to jettison the fundamental and binding common law doctrine of privity of contract. The primary judge consequently dismissed the Councils’ proceedings.

 

With great respect to the primary judge, the claim in this proceeding by a third party to a contract for declaratory relief in respect of the interpretation of that contract does not raise the privity doctrine. Instead, the question of standing is to be determined by reference to, in particular, the constitutional and statutory requirement for a “matter”, and the test for standing applicable to claims for declaratory relief. In the present case, these matters centre on, first, the existence and quality of the controversy regarding the Councils’ claim to declaratory relief and, second, the quality or character of the Councils’ interest in that relief.

 

For these reasons expressed below, the Councils have standing to seek the declaratory relief in respect of the interpretation and application of the leases. Although the parties to the leases—the Commonwealth and the Lessees—are not in dispute, this is not, by itself, an impediment to the crystallisation of a justiciable controversy. Moreover, in the present case, the Councils, which are participants and beneficiaries under the terms of the leases, have a sufficient interest in the declaratory relief sought, which, if granted, would be of real commercial and practical importance to the Councils.

 

On this basis, we allow the Councils’ appeals and dismiss the Lessees’ notices of contention. Although the Councils have standing, it remains to be determined whether the Councils are entitled to the declaratory relief sought in the circumstances of the present case. The proceedings will be remitted to the primary judge to determine that question.

VLRC Law of Contempt Report

The Victorian Law Reform Commission's Contempt of Court report has been released. 

The report covers the law of contempt of court, the Judicial Proceedings Reports Act 1958 (Vic), law about what people are allowed to publish about court proceedings and what is restricted. 

The Commission states 

The role of the courts is to administer justice—fairly, efficiently and with authority. Contempt of court is any conduct that interferes with the ability of the courts to perform their role. This can include conduct inside a courtroom, such as a witness refusing to answer questions, or conduct outside a courtroom, such as publishing information about an accused person that has not been heard in court.

 

The law of contempt of court is not based on Acts of Parliament. It is based on a long-standing power of the Supreme Court to protect the work of the courts from interference. It has developed over centuries through decisions made by courts.

 

Need for reform

 

It is rare for people to be charged with contempt of court. However, the law of contempt of court is critical. It protects public confidence in the courts and is essential to the rule of law. But it needs reform.

 

The law should be fairer, clearer, and more certain. A person should be able to know in advance what behaviour can be punished as a contempt of court. They should know what needs to be proved, who will judge them, what the process will be, and what punishment they could receive. A person should be able to understand the language of the law of contempt of court. This is not the case today.

 

The scope of contempt of court is also too broad. People have a right to freedom of expression and courts should be open. People who publish information about court proceedings should not be punished for contempt of court if they have taken reasonable care to do the right thing. It should only be a contempt of court in limited circumstances to make statements that undermine public confidence in judges and the courts.

 

The procedure for contempt of court is a confusing mix of civil law and criminal law. The procedure can be unfair. When a contempt of court happens in court during a trial, the same person – a judge or magistrate – can act as a witness, prosecutor and judge. When a person disobeys a court order, and is charged with contempt of court, it is not clear whether this is a criminal matter or not.

 

There are many new challenges. Online publishing and social media have changed the way people access and share information. The law of contempt of court has not kept up and needs to change.

 

How to reform the law

 

There should be a Contempt of Court Act that states clearly what the law is. This would make the law fairer, more certain and accessible for everyone.

 

The proposed Act should not simply convert the law of contempt into a series of criminal offences. The new Act should reflect that the courts’ contempt powers come from its inherent power to protect the administration of justice. However, the new Act should better define exactly when and how the courts can use that power.

 

The new Act should define the scope of the contempt powers of the Supreme Court. Lower courts (the County Court, Magistrates’ Court and Children’s Court) should have more limited contempt powers than the Supreme Court. They should be able to refer contempt matters to the Supreme Court.

 

The new Act should define the conduct that fits within the following common categories of contempt of court. Those categories should be renamed:

• contempt by conduct that interferes with a court proceeding—this includes disruptive and abusive behaviour in court, and witnesses refusing to answer questions. (Now known as contempt in the face of the court.)

• contempt by non-compliance with a court order or undertaking—this involves disobeying orders made by a court or undertakings given to a court. (Now known as disobedience contempt.) 

• contempt by publishing material prejudicial to legal proceedings— this includes publishing material that could make a trial unfair, for example by publishing information not before the court that may influence a juror to believe the accused was guilty. (Now known as sub judice contempt.) 

• contempt by publishing material undermining public confidence in the judiciary or courts—this includes publishing material that makes false claims about the integrity of a judge or magistrate. (Now known as scandalising contempt.) 

• interferences with and reprisals against those involved with a court proceeding—this includes threatening or harassing people involved in court proceedings to influence the proceedings, or punishing them for what they do or say in court.

The new Act should also include a general category of contempt that includes any other conduct that interferes with, or has a substantial risk of interfering with, the proper administration of justice. This would give courts power to deal with unusual forms of contempt.

 

The new Act should set out how a contempt of court should be dealt with, including who can start the process, and which general laws should apply. To ensure a fair trial, the procedure should be consistent with the Charter of Human Rights and Responsibilities. This will mean ending the special procedure for ‘contempt in the face of the court’ that currently allows a judge or magistrate to act as the witness, prosecutor and judge in a contempt case.

 

The proposed Act should set out maximum penalties for each of the categories of contempt. The maximum prison terms (with equivalent fines) should be:

• six months to 12 months for contempt by conduct that interferes with a court proceeding (depending on the court) 

• two years for contempt by publishing material that prejudices a legal proceeding or undermines public confidence in the judiciary or courts 

• five years for non-compliance with a court order or undertaking 

• ten years for other conduct amounting to contempt. 

The Judicial Proceedings Reports Act

 

The Judicial Proceedings Reports Act 1958 (Vic) should be modernised. It includes two restrictions on publishing information that are out of date and should be repealed. These are: a. publishing material about indecent matters b. publishing material about divorce and related proceedings.

 

The restriction on reporting directions hearings and sentence indications should be retained, because it protects a person’s right to a fair trial.

 

The law should continue to restrict the publication of material that identifies victims of sexual offences, and increase the maximum penalty for this offence to six months imprisonment. This should not, however, automatically apply to victims who have died, although family members should be able to request that a victim’s identity continue to be suppressed.

 

Although the identification of victims in sexual offence cases is restricted, victims who wish to tell their story should be able to do so. The law should be amended to make it clear that an adult victim can agree to be identified at any time, including prior to charge, post-charge and/or at trial, without requiring the court’s permission.

 

There should not be any further temporary restriction on reporting on the sensitive details of family violence and sexual offence cases. Instead, victims should be given advice and support to apply for suppression orders and judicial officers should be required to ask whether a suppression order is needed in these cases.

 

Enforcing restrictions on publication

 

It is difficult to enforce restrictions on publication today, because information can be published and shared on the internet instantly. The law needs to adapt to online publishing.

 

In general, publishers should not be punished for hosting or facilitating content written by other people, such as comments on a web page. However, the Open Courts Act should be amended to enable the courts to order publications be taken down, and to specify the procedure for take-down orders, including in urgent cases.

 

The law should also apply to material published overseas or interstate if there is a sufficient link to Victoria, although national cooperation and reforms are needed to make this effective.

 

The maximum penalty for breaching most restrictions on publications, including suppression orders, should be two years imprisonment. This would mean reducing the current penalty for breaching a suppression order, to be more consistent with similar offences elsewhere in Australia.

 

The courts should improve access to suppression orders so that people are aware of them. There should be more community education about why publications are sometimes restricted. Victim survivors should be supported to report breaches of the law.

 

There should be an audit of suppression orders that do not contain an end date. If a suppression order is no longer needed, there should be an application process to have it cancelled.

The  Government has today stated

In response to the Commission’s recommendations, the government will develop reforms to clarify and improve the law of contempt, so that what is prohibited through contempt laws is no broader than necessary, and so that the law of contempt does not lead to people being punished who have taken reasonable care to do the right thing. The serious consequences of a contempt conviction for individual journalists and media participants demands nothing less.

 

The government also commits to modernising the Judicial Proceedings Reports Act 1958. In particular, the government supports the rights of victims to tell their stories, and their right to ‘opt out’ of measures intended only to protect them. The Department of Justice and Community Safety will look at the Commission’s recommendations on this issue as a priority, and if reforms are needed to ensure these laws are effective, amendments will be urgently introduced.

 

 

As part of these reforms, government will consider changes to certain categories of contempt, including “scandalising contempt”, and ensure that reforms to allow victims of sexual offences to tell their stories operate effectively. The government will also closely review the enforcement of suppression orders in the internet age and raise this with other jurisdictions as appropriate.

 

These reforms will be developed in line with the government’s longstanding commitment to freedom of expression and freedom of the press. Such freedoms should, in our democracy, only be limited where there is a compelling justification, such as victim privacy and avoiding retraumatisation of those affected by crime, or the proper administration of justice.

 

The government will give further consideration and consult with stakeholders on the specific proposals put forward by the Commission in its report.

QLD LRC report

The Queensland Law Reform Commission Review of consent laws and the excuse of mistake of fact Report (Report No 78, June 2020) states 

 [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)]