Lawyers hit out at consent law plan
Top lawyers insist a sexual consent defence described as an "archaic legal loophole" is not a get out of jail free card and say they don't support the Opposition's plans to overhaul it.
Queensland's mistake of fact defence lets alleged rapists argue in court that they were so drunk they believed the victim had consented to sex, according to the LNP.
But the state's peak law bodies believed scrapping the defence would be a mistake.
Queensland Law Society president Bill Potts said there was "confusion and even misinformation" about how the defence worked.
"For the defence to be made out, (the defendants) belief must be both honest and reasonably held. It is not a get out of jail free card," he told the Courier Mail.
"Merely because a defendant argues a case in a particular way does not mean that it will be accepted by the jury. Juries, quite rightly, reject ridiculous defences and return verdicts of guilty.'
Writing in today's The Courier-Mail, Queensland Bar Association president Rebecca Treston, QC, said most barristers in the field didn't change was needed.
"It is not the common experience of members … that calculating, predatory, reckless or opportunistic offenders are avoiding criminal responsibility as a result of the current state of the law," she writes.
"It is also not the case that defendants can simply claim that they thought the complainant was consenting because they were intoxicated and expect to be acquitted on that basis."
Any changes needed to be on evidence, she said.
Both the Law Society and Bar Association supported the issue being examined by the Queensland Law Reform Commission.
Despite mounting pressure from the Queensland Women's Legal Service, retired Supreme Court Justice Roslyn Atkinson, sexual assault survivors and Labor's Left faction, Attorney-General Yvette D'Ath is yet to refer it to the commission.
"The Palaszczuk Government is considering the views of Queensland's foremost legal stakeholders and reviewing dozens of Court of Appeal judgments handed down since the definition of consent was previously amended almost 20 years ago," Ms D'Ath said.
In other states, the laws provide a lists of circumstances in which a person is not consenting to sex, including remaining silent.