Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law

Jonathan Crowe, Rachael Burgin, Holli Edwards

Research output: Contribution to journalArticleResearchpeer-review


This article discusses the application of the excuse of mistake of fact to the offence of sexual penetration without consent ( the equivalent to rape) in Western Australia. Australian rape law has moved towards an affirmative consent standard, but the mistake of fact excuse undermines this approach, allowing the defendant to rely on passive non-resistance or past acts by the complainant to excuse their behaviour. These arguments have succeeded in Western Australia even where there is a history of violence between the parties or the previous acts are unrelated. Intoxication or impaired capacity by the defendant also lower the bar for the excuse, potentially exacerbating these outcomes. We examine recent and proposed reforms in other Australian jurisdictions that could help resolve these issues
Original languageEnglish
Pages (from-to)284-315
Number of pages32
JournalUniversity of Western Australia Law Review
Issue number1
Publication statusPublished - 2023


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