Monday, January 27, 2020
Andrew Dyer (The University of Sydney Law School) has posted Progressive Punitiveness in Queensland (Australian Bar Review, 2020 (Forthcoming)) on SSRN. Here is the abstract:
Jonathan Crowe and Bri Lee have recently argued that the mistake of fact excuse, for which s 24 of the Criminal Code Act 1913 (Qld) provides, should be rendered inapplicable to rape and sexual assault proceedings in that State. In this article, I argue that this proposal is objectionable because, however progressive its promoters consider it to be, it is incompatible with human rights – and would probably breach the Human Rights Act 2019 (Qld). Moreover, the Queensland Law Reform Commission and the Queensland Parliament should reject an alternative proposal of Crowe and Lee’s, which seems to be aimed at achieving indirectly what their primary proposal would achieve directly. Even if Crowe and Lee’s research demonstrated that mistake of fact is causing injustice for rape and sexual assault complainants – and it does not – absolute liability for serious crime is indefensible.