Submission to Queensland Law Reform Commission Consent and Mistake of Fact Review: Definitions of Consent and Rape in the Queensland Criminal Code

Jonathan Crowe, Asher Flynn, Bri Lee

Research output: Other contributionSubmission to governmentProfessional

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Abstract

In the second half of 2018, the Attorney-General sought the views of key legal stakeholders about the operation of Queensland's existing laws regarding consent and the excuse of mistake of fact as they apply to rape and sexual assaults.
In the first half of 2019 sexual violence service providers, victims and survivors, and other members of the community were consulted on the development of a Sexual Violence Prevention Framework for Queensland.
The results of this consultation revealed many and varied views on the operation of laws regarding consent and the excuse of mistake of fact, which has informed the Queensland Government's decision to refer these matters to the Queensland Law Reform Commission.

The Commission is asked to examine the operation and practical application of:
(a)the definition of consent in section 348; and
(b)the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code.
The Commission is asked to make recommendations on:
(a)whether there is a need for reform of:
i.the definition of consent in section 348;
ii.the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code; and
(b)any other matters the Commission considers relevant having regard to the issues relating to the referral.

The Commission is to provide a report on the outcomes of the review to the Attorney-General and Minister for Justice and Leader of the House by 17 April 2020.

This submission recommends amendments to the definition of consent in Chapter 32
of the Queensland Criminal Code to bring it in line with developments in other
Australian and overseas jurisdictions. The Queensland definition of consent has long
been relatively progressive by world standards, but it no longer represents best
practice. We propose three main changes to clarify the current definition of consent
and to modernise outdated language:
a. Introducing guiding principles to recognise the unique nature of rape and
sexual assault offences, which should be considered by the court and
relevant criminal justice agents;
b. Updating the list of consent-negating circumstances in s 348 of the Criminal
Code to reflect case law in Queensland and elsewhere, and legislative
reforms in other jurisdictions; and
c. Updating the definition of the crime of rape in s 349 to remove the outdated
language of ‘carnal knowledge
Original languageEnglish
TypeSubmission to Government
Number of pages9
Publication statusSubmitted - 7 Oct 2019

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Cite this

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title = "Submission to Queensland Law Reform Commission Consent and Mistake of Fact Review: Definitions of Consent and Rape in the Queensland Criminal Code",
abstract = "In the second half of 2018, the Attorney-General sought the views of key legal stakeholders about the operation of Queensland's existing laws regarding consent and the excuse of mistake of fact as they apply to rape and sexual assaults. In the first half of 2019 sexual violence service providers, victims and survivors, and other members of the community were consulted on the development of a Sexual Violence Prevention Framework for Queensland. The results of this consultation revealed many and varied views on the operation of laws regarding consent and the excuse of mistake of fact, which has informed the Queensland Government's decision to refer these matters to the Queensland Law Reform Commission. The Commission is asked to examine the operation and practical application of:(a)the definition of consent in section 348; and(b)the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code.The Commission is asked to make recommendations on:(a)whether there is a need for reform of:i.the definition of consent in section 348;ii.the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code; and(b)any other matters the Commission considers relevant having regard to the issues relating to the referral.The Commission is to provide a report on the outcomes of the review to the Attorney-General and Minister for Justice and Leader of the House by 17 April 2020. This submission recommends amendments to the definition of consent in Chapter 32of the Queensland Criminal Code to bring it in line with developments in otherAustralian and overseas jurisdictions. The Queensland definition of consent has longbeen relatively progressive by world standards, but it no longer represents bestpractice. We propose three main changes to clarify the current definition of consentand to modernise outdated language:a. Introducing guiding principles to recognise the unique nature of rape andsexual assault offences, which should be considered by the court andrelevant criminal justice agents;b. Updating the list of consent-negating circumstances in s 348 of the CriminalCode to reflect case law in Queensland and elsewhere, and legislativereforms in other jurisdictions; andc. Updating the definition of the crime of rape in s 349 to remove the outdatedlanguage of ‘carnal knowledge",
author = "Jonathan Crowe and Asher Flynn and Bri Lee",
year = "2019",
month = "10",
day = "7",
language = "English",
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Submission to Queensland Law Reform Commission Consent and Mistake of Fact Review: Definitions of Consent and Rape in the Queensland Criminal Code. / Crowe, Jonathan; Flynn, Asher; Lee, Bri.

9 p. 2019, Submission to Government.

Research output: Other contributionSubmission to governmentProfessional

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AU - Flynn, Asher

AU - Lee, Bri

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N2 - In the second half of 2018, the Attorney-General sought the views of key legal stakeholders about the operation of Queensland's existing laws regarding consent and the excuse of mistake of fact as they apply to rape and sexual assaults. In the first half of 2019 sexual violence service providers, victims and survivors, and other members of the community were consulted on the development of a Sexual Violence Prevention Framework for Queensland. The results of this consultation revealed many and varied views on the operation of laws regarding consent and the excuse of mistake of fact, which has informed the Queensland Government's decision to refer these matters to the Queensland Law Reform Commission. The Commission is asked to examine the operation and practical application of:(a)the definition of consent in section 348; and(b)the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code.The Commission is asked to make recommendations on:(a)whether there is a need for reform of:i.the definition of consent in section 348;ii.the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code; and(b)any other matters the Commission considers relevant having regard to the issues relating to the referral.The Commission is to provide a report on the outcomes of the review to the Attorney-General and Minister for Justice and Leader of the House by 17 April 2020. This submission recommends amendments to the definition of consent in Chapter 32of the Queensland Criminal Code to bring it in line with developments in otherAustralian and overseas jurisdictions. The Queensland definition of consent has longbeen relatively progressive by world standards, but it no longer represents bestpractice. We propose three main changes to clarify the current definition of consentand to modernise outdated language:a. Introducing guiding principles to recognise the unique nature of rape andsexual assault offences, which should be considered by the court andrelevant criminal justice agents;b. Updating the list of consent-negating circumstances in s 348 of the CriminalCode to reflect case law in Queensland and elsewhere, and legislativereforms in other jurisdictions; andc. Updating the definition of the crime of rape in s 349 to remove the outdatedlanguage of ‘carnal knowledge

AB - In the second half of 2018, the Attorney-General sought the views of key legal stakeholders about the operation of Queensland's existing laws regarding consent and the excuse of mistake of fact as they apply to rape and sexual assaults. In the first half of 2019 sexual violence service providers, victims and survivors, and other members of the community were consulted on the development of a Sexual Violence Prevention Framework for Queensland. The results of this consultation revealed many and varied views on the operation of laws regarding consent and the excuse of mistake of fact, which has informed the Queensland Government's decision to refer these matters to the Queensland Law Reform Commission. The Commission is asked to examine the operation and practical application of:(a)the definition of consent in section 348; and(b)the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code.The Commission is asked to make recommendations on:(a)whether there is a need for reform of:i.the definition of consent in section 348;ii.the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code; and(b)any other matters the Commission considers relevant having regard to the issues relating to the referral.The Commission is to provide a report on the outcomes of the review to the Attorney-General and Minister for Justice and Leader of the House by 17 April 2020. This submission recommends amendments to the definition of consent in Chapter 32of the Queensland Criminal Code to bring it in line with developments in otherAustralian and overseas jurisdictions. The Queensland definition of consent has longbeen relatively progressive by world standards, but it no longer represents bestpractice. We propose three main changes to clarify the current definition of consentand to modernise outdated language:a. Introducing guiding principles to recognise the unique nature of rape andsexual assault offences, which should be considered by the court andrelevant criminal justice agents;b. Updating the list of consent-negating circumstances in s 348 of the CriminalCode to reflect case law in Queensland and elsewhere, and legislativereforms in other jurisdictions; andc. Updating the definition of the crime of rape in s 349 to remove the outdatedlanguage of ‘carnal knowledge

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M3 - Submission to government

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