CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, March 17, 2023

Crowe et al. on Affirmative Consent and Mistakes of Fact

Jonathan CroweRachael Burgin, and Holli Edwards (Bond University - School of Law, Swinburne University of Technology - Swinburne Law School and Bond University, Students) have posted Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law ((2023) 50 University of Western Australia Law Review 284) on SSRN. Here is the abstract:
This article discusses the application of the excuse of mistake of fact to the offence of sexual penetration without consent (the equivalent to rape) in Western Australia. Australian rape law has moved towards an affirmative consent standard, but the mistake of fact excuse undermines this approach, allowing the defendant to rely on passive non-resistance or past acts by the complainant to excuse their behaviour. These arguments have succeeded in Western Australia even where there is a history of violence between the parties or the previous acts are unrelated. Intoxication or impaired capacity by the defendant also lower the bar for the excuse, potentially exacerbating these outcomes. We examine recent and proposed reforms in other Australian jurisdictions that could help resolve these issues.

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