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Australia: Sexual Consent Provisions in Queensland Criminal Code Amended

(Apr. 20, 2021) On April 7, 2021, the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld), which was passed by the Queensland Parliament on March 25, 2021, received assent from the state governor. The amendments to the consent provisions related to certain sexual offenses in the Criminal Code Act 1899 (Qld) implement recommendations made by the Queensland Law Reform Commission. The commission, tasked in September 2019 with reviewing consent laws and the excuse of mistake of fact, completed its report in June 2020. The explanatory notes to the relevant bill state that

[t]hese amendments to the Criminal Code are almost entirely declaratory of the existing law of Queensland. However, much of that existing law is found in Queensland’s case law[,] not in the words of the Criminal Code itself.

On introducing the bill in the Parliament, Queensland Attorney-General Shannon Fentiman stated that

[t]he bill implements all five of the commission’s recommendations by amending the Criminal Code to make explicit four legal principles that can be distilled from the current case law of Queensland. Those principles are: silence alone does not amount to consent; consent initially given can be withdrawn; regard may be had to anything the defendant said or did to ascertain consent when considering whether the defendant was mistaken about whether the other person gave consent; and that a defendant’s voluntary self-intoxication is not relevant to the reasonableness aspect of the excuse of mistake of fact.

The bill also implements the commission’s recommendation to fix an inconsistency in the Criminal Code by clarifying that the definition of ‘consent’ in section 348 applies to all offences in chapter 32[,] including the offence of sexual assault contained in section 352(1)(a). These amendments to the code are intended to strengthen and clarify the operation of the law, ensuring a consistent and correct application of these important legal principles by judges, juries and legal practitioners. A transitional provision provides that the amendments to the code are to apply prospectively to offences in chapter 32 that are charged after the date of commencement but will be able to be applied to offences that are committed before commencement.

The act therefore clarifies the meaning of consent, as defined under the Criminal Code, by adding the following new subsections to section 348:

(3) A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.

(4) If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.

The act also adds a new section 348A on mistake of fact to the Code:

(1) This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person gave consent to the act.

(2) In deciding whether a belief of the person was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.

(3) In deciding whether a belief of the person was reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.

Women’s rights advocates had pushed for amendments requiring affirmative consent to be included in the bill, arguing that the above reforms failed to adequately protect victims of sexual assault. A member of Parliament from the Green Party, Amy McMahon, “made a last ditch attempt to add an affirmative consent model to the bill, which proposed the need to require clear and more enthusiastic agreement before taking part in a sexual act.” However, the bill as originally proposed passed with the support of both the Labor and the Liberal National parties.

Upon the passage of the bill, the attorney-general stated that “these reforms were an important first step in modernising consent laws in Queensland. . . . I understand that some stakeholders believe the laws could go further, and I acknowledge there is always more to do.” She also referred to “a wide-ranging review of women’s experiences in the criminal justice system to be conducted by the Women’s Safety and Justice Taskforce,” announced earlier March 2021, saying that

[t]he taskforce will look at ways to break down the barriers women face from when they report the crime all the way to their experience in the court.

These are complex laws that need extensive consultation to get this right, and if the taskforce find that consent laws need amending, our Government will act.