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Abstract
This article considers the role of the excuse of mistake of fact in Queensland rape and sexual assault law. We argue that the excuse has undesirable and socially regressive consequences by allowing reference to factors such as the complainant’s social behaviour, relationship to the defendant or lack of overt resistance that are at odds with the definition of free and voluntary consent. The excuse has also led to problematic results in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant. We canvass two potential reforms aimed at addressing these issues. The first would render the excuse inapplicable to the issue of consent in rape and sexual assault cases, while the second would limit the excuse to address its most troubling outcomes.
Original language | English |
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Number of pages | 32 |
Journal | University of Queensland Law Journal |
Volume | 39 |
Issue number | 1 |
DOIs | |
Publication status | Published - 2020 |
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Dive into the research topics of 'The Mistake of Fact Excuse in Queensland Rape Law: Some Problems and Proposals for Reform'. Together they form a unique fingerprint.Related Projects
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RASARA: Rape & Sexual Assault Research & Advocacy
Crowe, J., Burgin, R., Mullins, S., Flynn, A., Funnell, N. & Marson, K.
1/01/17 → …
Project: Research
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The Mistake of Fact Excuse in Queensland Rape Law: The Path to Reform
Jonathan Crowe (Speaker)
20 Jan 2020Activity: Talk or presentation › Invited talk
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The Mistake of Fact Excuse in Western Australian Rape Law: A Case for Reform
Jonathan Crowe (Speaker), Rachael Burgin (Speaker) & Holli Edwards (Speaker)
17 Jul 2020Activity: Talk or presentation › Oral presentation
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The Mistake of Fact Excuse in Queensland Rape Law: Some Problems and Proposals for Reform
Jonathan Crowe (Speaker)
12 Feb 2020Activity: Talk or presentation › Invited talk