Bri Lee
Time to reform Queensland consent laws

On or about December 13, 2003, a man named Basil Adam Soloman consumed approximately “a carton of stubbies of full-strength beer … a dozen cans of rum and cola, and about five cones of cannabis” before initiating intercourse with a woman.

Her evidence was that she was asleep and awoke to being raped by Soloman, who said “sorry” and left. She went to her doctor to be tested for sexually transmitted infections and told them she had been raped, but she did not at that stage make a police report. Soon she received a Christmas card, in which Soloman repeatedly apologised – for what, he did not specify.

She kept seeing him at social occasions, and it made her upset. He told her to “get over it”. About a year after the alleged incident, she made a complaint to the police. But Soloman’s evidence directly contradicted hers.

On the night in question, he alleged, she was an enthusiastic participant, engaging in foreplay and saying his name, but at some point she asked him to stop. That was when he started feeling guilty for taking advantage of a drunk woman.

A jury found Soloman guilty of rape, a conviction he appealed because he said the judge had not correctly told the jury how to apply the “mistake of fact” defence to the situation.

“Mistake of fact” comes from section 24 of the Queensland criminal code. It says that where the defendant had an “honest and reasonable but mistaken belief” in a state of things that made their actions legal, they must be acquitted.

Applied to the case of R v Soloman, the “mistake of fact” defence does not suggest the complainant consented. Instead, it says Soloman had an honest and reasonable belief that she did. The alcohol and cannabis he had consumed was considered when determining his state of mind. His intoxication assisted him to secure an acquittal.

In Queensland, this case is precedent. The criminal code allows a person’s drunkenness to contribute to the jury’s view of their subjective state of mind. This affects whether prosecutors decide to take a matter to trial, whether police even investigate an allegation.

The overwhelming attitude is, “Why bother if there’s no chance of conviction?”

In Tasmania, the legislation was amended in 2004 to say that voluntary intoxication couldn’t be used in this way. Similar provisions exist in most other states and territories, including Victoria, New South Wales, South Australia and the Northern Territory.

Some jurisdictions, including the ACT, say that recklessness as to whether the complainant was consenting is sufficient to establish criminal liability. Only Western Australia still has provisions similar to those in Queensland.

For the past 12 months, I have been advocating this law be reviewed in Queensland, asking for Queensland’s attorney-general, Yvette D’Ath, to refer the issue to the state’s law reform commission. I am not alone.

A retired Supreme Court judge, Justice Roslyn Atkinson, has spoken out against the archaic laws.

The Women’s Legal Service Queensland has been petitioning the government on this issue for at least three years.

Jonathan Crowe, my colleague in legal research on the “mistake of fact” defence and professor of law at Bond University, has made three separate submissions to state government over the past decade – one in 2011, one in 2014 and now our joint submission in 2019.

Together, we have co-authored an academic paper that compiles all the Queensland Court of Appeal decisions, including R v Soloman, in which “mistake of fact” has had blatantly unfair consequences for survivors of sex crimes.

That paper has been turned into a website – consentlawqld.com – where the issue is explained simply and people can go for information.

Intoxication isn’t the only complicating factor that makes rape almost impossible to “prove” in court. If the complainant has a “freeze” response, if the defendant and complainant don’t speak the same language or if there are questions about mental capacity, the “mistake of fact” defence comes alive and allows all kinds of old rape myths to be called as evidence.

Actual definitions of consent have been improved over decades. We no longer require survivors to have “fought off” their attackers to prove they did not consent. But the “mistake of fact” defence renders it excruciatingly common for a defendant’s acquittal to be secured by evidence of a survivor “freezing” or eventually complying after initially saying no, often repeatedly.

In one case, R v Motlop, a man had violently assaulted the complainant with a knife because he thought she was cheating on him. After a prolonged attack during which she sustained significant injuries, he initiated sex. She told him she was in pain and didn’t want to, but he continued, and she eventually told him she “loved him”, telling the court this was her “way of survival”. The Court of Appeal said that the complainant’s expression of love could provide “a rational basis” for the jury to conclude that the defendant had a mistaken and reasonable belief in consent.

Other cases involve a 13-year-old girl who was asleep when the 21-year-old defendant entered her bedroom, and who was deemed not to have fought back hard enough; a woman in a wheelchair complying out of fear after a taxi driver followed her into her house; and several instances of defendants clearly targeting women whose second language was English, then saying the language barrier created a “grey zone”.

On May 19, Jonathan Crowe and I hosted a letter-writing event at Brisbane Square Library. Anyone could come and ask us questions, and write a letter asking the attorney-general to address this problem. Survivors came, as did young women with their mothers, and several young men too. The only demographic not represented was older men. We sent off about 100 letters, handwritten by concerned Queenslanders. A book club in Townsville got together and hosted their own letter-posting event as well.

I, as someone who receives a lot of correspondence detailing abuse and assault, wonder whether Attorney-General D’Ath will take the time to read through these letters. I know people were crying as they wrote them on Sunday. I’ve read very similar letters. I know how it feels to pore through them for hours on end, how draining it is, how the personal details are as painful as the similarities. I wonder whether she will cry if she reads them.

I have spent so much money and time on this fight. I am thankful for the support Bond University has given our research and website. But I know if I were making a lawyer’s wage, or an attorney-general’s wage, I would be rich by now.

I am a lawyer with a small public profile, and I work with Crowe, the most knowledgeable academic on this issue. If someone in my position, with my resources and sustained commitment to this matter, cannot make any difference, I’m not sure what that means for the relationship between citizens and their government in Australia.

At that event on Sunday, in the aftermath of the election, it was hard not to think about Queensland’s place in Australia’s politics and the outdated ideas to which the state seems to cling. I was born and raised in Queensland but struggle to muster the requisite courage to reach outside of my leftie progressive bubble.

Twitter was flooded with people’s memes and posts blaming Queensland for the election result.

In Queensland, Crowe tells me, “cultural conservatism” around sexual issues and gender roles makes the government “cautious” about reform. He says, “The Brisbane legal profession is very conservative, both politically and socially, meaning governments cannot count on support from prominent lawyers and judges – in fact, the government knows there will be loud voices from the criminal bar opposing any reforms.”

But there is stasis, and then there is government taking actual steps back.

I think of Alabama, and several other American states, where women’s abortion rights are under threat. Where attitudes towards women’s rights are going backwards instead of forwards.

In NSW, where consent laws are currently being reviewed, the NSW Bar Association has made a submission that I would describe as a step back. In cases of recklessness or intoxication, it suggests, there should be a second, less serious type of criminal offence than rape, with a correspondingly lower sentencing range.

I find this offensive. I wonder who would take it seriously, given the financial interest barristers have in these processes. Amending laws such as “mistake of fact” would see significantly more matters proceed to sentencing, rather than to trials, meaning barristers’ billable hours would be significantly reduced. Crowe is right though, and the opinions of powerful people in the profession do matter.

It would be a stretch to call what we have been pushing for in Queensland “progressive”. Similar laws to those we propose have been in place in Tasmania for well over a decade. How can parity be such a slog?

I am alarmed and exhausted. What else can we do? Where do we go from here? The possibility that we will run out of time and money before Attorney-General D’Ath listens feels all too close for me. The threat we could go even further backwards is ever-present.

This article was first published in the print edition of The Saturday Paper on May 25, 2019 as "Make no mistake".

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Bri Lee is a legal academic and the author of Who Gets to Be Smart.

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