Review of consent in rape and sexual assault
On 9 July 2019, former Attorney-General and Minister for Justice Yvette D'Ath, and former Minister for Child Safety, Youth and Women and Minister for the Prevention of Domestic and Family Violence Di Farmer, announced they would refer the matter of consent in rape and sexual assault cases to the Queensland Law Reform Commission (QLRC).
The QLRC reported its findings to government on 30 June 2020 and made 5 key recommendations in its Review of consent laws and the excuse of mistake of fact report.
On 13 August 2020, the former Attorney-General and Minister for Justice introduced the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020 (the Bill) and referred it to the Legal Affairs and Community Safety Committee for detailed consideration. The Bill amends the Criminal Code to implement the recommendations of the QLRC. The Bill lapsed on 6 October 2020 following the end of the last term of government and dissolution of parliament prior to the Queensland state election.
The Bill was reintroduced on 26 November 2020 by the Honourable Shannon Fentiman MP, Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence in the same form as the Bill of the same name that was introduced on 13 August 2020. The Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020 (the Bill) was passed by Parliament on 25 March 2021 and commenced 7 April 2021.
The Bill clarified the following key aspects of consent law in Queensland:
- silence alone does not amount to consent
- consent initially given can be withdrawn by words or conduct
- a jury can consider anything the defendant said or did to ascertain consent when considering the excuse of mistake, and
- the voluntary intoxication of the defendant is irrelevant to whether it was reasonable that a defendant believed they had consent.
The Bill also amended the Criminal Code to make the definition of consent consistent for all sexual offences in Chapter 32 of the Criminal Code.