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During an attack, a victim of sexual assault may respond in one of three ways: fight, flight, or freeze. Each response is entirely valid and depends on the individual circumstances of the victim, but the freeze response is often misunderstood in terms of sexual assault.

Some victims fear the threat of implicit or explicit physical violence and determine their safest option is to freeze, assessing that fighting or fleeing would increase the risk of pain and suffering. In cases like these, the defence can establish Mistake of Fact despite freezing not being an indicator of consent under the law.

In R v Sax the complainant was extremely drunk but not entirely unconscious, rendering her incapable of physically or verbally resisting the assault. The defence used her lack of resistance to raise Mistake of Fact as it meant the defendant could have mistakenly believed she was consenting as she did not fight back. In R v Dunrobin the complainant initially resisted, then passively complied, allowing the defendant to benefit from Mistake of Fact. She repeatedly told her attacker to stop and attempted to push him off. The defendant then removed her clothes and had intercourse with her. The complainant testified that her body froze because she was scared that her resistance would be to no avail or lead to greater harm. The defendant was able to prove Mistake of Fact on the ground of her freezing.

This has established a dangerous precedent in Queensland – a victim’s initial refusal is not enough to refute consent. Any subsequent freezing retroactively validates the defendant’s belief that consent had been given.

Intoxication Lowers the Bar for Proving Mistake of Fact

Intoxication, either by the defendant, the complainant, or both, allows the defendant to blame their lack of caution when gauging whether the complainant was consenting on intoxication.

To prove Mistake of Fact, the defendant must demonstrate that their belief was not only honest but also reasonable. Intoxication cannot be used to prove that the defendant’s mistake was reasonable. However, it can be used to prove that it was honest. Professor of Law and Associate Dean of Research at Bond University, Jonathon Crowe, summarises this as determining if a mistake is a genuine mistake and not just something being made up. ‘The courts have said that if the defendant is intoxicated, then that might mean they would make a mistake that they might not otherwise make [sober], and so in that respect, it can support the honesty of the mistake.’

While intoxication cannot be used to determine reasonableness, Crowe doubts whether a jury would be able to distinguish this legal technicality.

‘The problem I think is that because intoxication is relevant to honesty, the defence could [say] the defendant was so drunk that they made a mistake.’

Crowe highlights that this is not an issue in other states, as intoxication is deemed irrelevant and cannot be used to prove honesty for Mistake of Fact. However, the ability to rely on intoxication to prove the defendant’s mistake was honest remains an issue in Queensland, where this defence has succeeded in cases where the complainant ‘blacked out’, legally meaning she was incapable of consenting. During one trial it was noted that the defendant was intoxicated making them ‘too drunk’ to have removed the complainant’s clothes. The defence insinuated that the complainant was mistaken in her account of being raped, as she herself was drunk.

Intoxication is only legally permissible for determining a victim’s capacity to consent, but in this case, it was used to undermine and critique the complainant’s account, thereby placing the victim on trial rather than the defendant.

The Recent Amendment Has Not Gone Far Enough

The availability of the Mistake of Fact defence in Queensland screams to sexual assault survivors that their best efforts to achieve justice will only be in vain. In June 2020, the Queensland Law Reform Commission delivered a profoundly flawed review of the operation and application of consent and Mistake of Fact. For the gravity of such an issue and the immense overhaul needed to amend these injustices for sexual assault victims, the QLRC delivered only five recommendations, none of which were substantial.

The review states that recent research does not strongly support the concern that jurors commonly harbour false prejudices or rape myths, or that any such preconceptions affect jury deliberation or verdicts. This indicates a willing ignorance on the part of the QLRC concerning the mountain of studies that have been conducted in Australia regarding the influence rape myths have on jurors’ ability to remain impartial, and instead relied upon a heavily criticised study from the UK. ‘There are two important things to note [about this study]. Firstly, you can’t use a study from the UK as evidence of what happens in QLD trials; there’s just no way you can draw that connection,’ Professor Crowe said.

‘Secondly, other studies in Australia from different states have shown that rape myths play a role in rape trials, and the QLRC just ignored that in favour of this UK study’.

‘The reason the QLRC had its inquiry in the first place was because of substantive problems that have been pointed out by [advocates] ... and so the QLRC’s reforms didn’t do anything to address those problems because they didn’t change the law, they just codified it.’ So how do we rectify this institutionalised nature of gaslighting survivors and ensure that the justice system upholds the rights of the complainant? According to Professor Crowe, the answer is simple.

‘I think that limiting the application of the excuse would be a big step forward, and that is what Queensland is likely to do at some point because that’s the model that has been adopted in other states … the other option of removing the Mistake of Fact excuse from rape and sexual assault entirely should also be on the table.’

Essentially, this would mean that the defendant cannot rely upon intoxication to prove their mistake was honest or retort archaic rape myths. Additionally, the defendant must demonstrate that he took positive steps in ascertaining the complainant’s consent. In practice, this would mean that the Mistake of Fact defence would not be available for the defendant to use.

This would alleviate the injustice experienced by victims without infringing upon the defendant’s right to a fair trial or presumption of innocence. The initiating party will be expected to take active steps to ensure their partner consents to each new sexual act, as they cannot rely on this defence to excuse reckless behaviour.

Conservative opponents argue this will reverse the onus of proof. This is a flawed argument as the onus of proof remains with the prosecution to prove the defendant had carnal knowledge with the complainant without their consent, remaining consistent with the rule of law and due process.

‘It’s just false,’ Professor Crowe says. ‘That is wrong to say in law. Regardless of whether the Mistake of Fact excuse applies to rape or not, the prosecution would still have to prove the elements of the crime beyond a reasonable doubt.’ ‘This is not just an issue about changing the law, it’s also about changing social attitudes, and that’s probably the most important objective. We... need to accompany legislative changes with public education. This is something that should be sustained and should be part of sex education in schools. I think that is the only way to, over time... address and rectify rape myths.’

This piece was originally published on qutglass.com