Defending rape charges: consent law in Queensland

It is a defence to a charge of rape if the accused person believed, honestly and reasonably, that the complainant consented to sexual intercourse.

The defence, known as “mistake of fact”, is contained in section 24 of the Queensland Criminal Code.  It states that a person is not guilty of a criminal offence if that person “does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things.”

There are several important limitations to the defence.  First, the person’s belief must have been honest at the time the alleged offence was committed.  Second, the belief must be reasonable in the circumstances.  This is an objective test determined with reference to the surrounding facts and evidence.

Voluntary intoxication (of alcohol or drugs) is not a defence, but may be considered as part of the overall circumstances to determine if a person’s state of belief about consent was reasonable.

Ultimately it is a matter for a jury to decide whether an accused person held an honest but mistaken belief about consent.

Early legal advice is essential if you have been charged with a serious criminal offence such as rape.  Decisions made early on in proceedings may have a profound impact at your trial.  Preparation is a key aspect of mounting a strong legal defence.