OPINION: ‘Mistake of fact’ defence rape laws need balance

AS a sexual assault victim, I struggle listening to rape cases before the court, not just because it reminds me of my own experiences, but also because my heart fills with sadness for what the victims have to go through to get justice.

But that doesn't mean I support the proposed abolishment of the 110-year-old 'mistake of fact' defence available in Queensland for rape defendants. Nor do I support it in its current form.

The rape trial that ran in Rockhampton this week is a good example of why 'mistake of fact' defence should stay.

I feel sorry for the woman who had to give evidence in this trial because that is not an easy task.

But I can, after listening to the closing addresses which pointed to evidence put to the jury thoughout the week, see how that young man may not have realised how intoxicated the woman was, nor know she was 'blacking out' after swallowing an illicit drug.

From what I heard, there was no suggestion he knew she had swallowed the pill.

I don't believe there was any 'victim blaming' in this case. Just questions raised about how a young man with little life experience and intoxicated himself could have known her state of mind if she wasn't displaying behaviour that suggested she was too intoxicated to give consent.

I do hope the Law Reform Commission's recommendations are able to update this law to modern standards, while finding a balance of knocking those that abuse the justice system using this defence and those accused when they genuinely thought they were having consensual sex.



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