Reform to the Law of Consent: A Tale of Two States

Reform to the Law of Consent: A Tale of Two States

There has recently been detailed consideration of the reform of rape laws in two Australian jurisdictions. The results of these deliberations have been mixed. New South Wales has adopted an affirmative consent model, in line with two other Australian jurisdictions, while Queensland has declined to do so, but nudged the law slightly further in this direction. This article discusses the evolution of rape law, highlights recurrent difficulties with the law in this area, and discusses the recent reforms. It suggests further improvements to the law in Queensland, given evidence of the misuse of the mistake of fact defence. The subject matter of this article is considered relevant to how criminal trials for alleged sexual offences are conducted, including the instructions given to juries. Respectfully, it might potentially cause some reflection from members of the judiciary in relation to such matters, difficult as they are.

This article was first published by Thomson Reuters in Journal of Judicial Administration and should be cited as Anthony Gray, Reform to the Law of Consent: A Tale of Two States, (2022) 31 JJA 229. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.