Submission to the Law Reform Commission of Western Australia Review on Sexual Offences: Mistake of Fact Excuse in Rape and Sexual Assault Law

Australian rape law has moved towards an affirmative consent standard, with recent reforms in New South Wales, the Australian Capital Territory and Victoria exemplifying this trend. Professor Crowe, Dr Burgin and Ms Edwards’s research found that the mistake of fact excuse as applied in Western Australia undermines this approach, allowing the defendant to rely on passive non-resistance or past acts by the complainant to excuse their behaviour.