Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law
Article
Crowe, Jonathan, Burgin, Rachael and Edwards, Holli. 2023. "Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law." University of Western Australia Law Review. 50 (1), pp. 284-315.
| Article Title | Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law |
|---|---|
| ERA Journal ID | 33970 |
| Article Category | Article |
| Authors | Crowe, Jonathan, Burgin, Rachael and Edwards, Holli |
| Journal Title | University of Western Australia Law Review |
| Journal Citation | 50 (1), pp. 284-315 |
| Number of Pages | 32 |
| Year | 2023 |
| Publisher | University of Western Australia |
| Place of Publication | Australia |
| ISSN | 0042-0328 |
| Web Address (URL) | https://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/UWALawRw/2023/7.html?context=1;query=Affirmative%20Consent%20and%20the%20Mistake;mask_path=au/journals/UWALawRw |
| Abstract | This article discusses the application of the excuse of mistake of fact to the offence of sexual penetration without consent (the equivalent to rape) in Western Australia. Australian rape law has moved towards an affirmative consent standard, but the mistake of fact excuse undermines this approach, allowing the defendant to rely on passive non-resistance or past acts by the complainant to excuse their behaviour. These arguments have succeeded in Western Australia even where there is a history of violence between the parties or the previous acts are unrelated. Intoxication or impaired capacity by the defendant also lower the bar for the excuse, potentially exacerbating these outcomes. We examine recent and proposed reforms in other Australian jurisdictions that could help resolve these issues. |
| Keywords | affirmative consent |
| Contains Sensitive Content | Does not contain sensitive content |
| ANZSRC Field of Research 2020 | 480401. Criminal law |
| Public Notes | File reproduced in accordance with the copyright policy of the publisher/author/creator. |
| Byline Affiliations | Bond University |
| Swinburne University of Technology |
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https://research.usq.edu.au/item/zywy0/affirmative-consent-and-the-mistake-of-fact-excuse-in-western-australian-rape-law
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