The Mistake of Fact Excuse in Queensland Rape Law: Some Problems and Proposals for Reform

Research output: Contribution to journalArticleResearchpeer-review


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 languageEnglish
Number of pages32
JournalUniversity of Queensland Law Journal
Issue number1
Publication statusPublished - 2020

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  • Projects

    Consent Law in Queensland: Public Advocacy Campaign

    Crowe, J. & Lee, B.

    1/01/19 → …

    Project: Research

    RASARA: Rape & Sexual Assault Research & Advocacy

    Crowe, J., Burgin, R., Mullins, S., Flynn, A., Funnell, N. & Marson, K.

    1/01/17 → …

    Project: Research


    • 2 Invited talk
    • 1 Oral presentation

    The Mistake of Fact Excuse in Queensland Rape Law: The Path to Reform

    Jonathan Crowe (Speaker)

    20 Jan 2020

    Activity: Talk or presentationInvited talk

    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 2020

    Activity: Talk or presentationOral presentation

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