QAI made a submission to the Queensland Law Reform Commission Inquiry into the Mistake of Fact defence.
Retain mistake of fact defence, because some people with intellectual impairment can misinterpret, for example, body language, or verbal cues if CALD, but:
- A proper evidentiary basis must exist before the court directs a jury on this defence e.g. where the woman has shown little or no outward manifestation of any lack of consent (as opposed to where there is evidence of accused’s use of force/violence, and resistance by complainant).
- Provide clearer guidance in the legislation for what constitutes a “reasonable” basis for an accused to believe in consent
- Provide guidance for jury directions that explain the above.
You can read the full submission here.