Mistakes That Negate Apparent Consent
A. Dyer, "Mistakes That Negate Apparent Consent", Criminal Law Journal, 43, 2019, pp. 159 - 179
22 Pages Posted: 16 Aug 2019
Date Written: August 13, 2019
This article argues that there is a need for the various State and Territory legislatures to reform the law concerning those mistaken beliefs that negate a complainant’s apparent consent to sexual activity. While, at least on its face, the position in Western Australia, the Australian Capital Territory and Tasmania is unacceptably broad, the list of vitiating mistakes in the relevant New South Wales, South Australian, Victorian, Northern Territory and Queensland legislation is too narrow. In all jurisdictions, Parliament should give the courts greater guidance than it does about when a conviction is to be returned in a mistake case. As well as providing for a non-exhaustive list of vitiating mistakes, it should make it clear that, whenever a sexual offence complainant has made a but for mistake, a conviction should follow unless an interest of the defendant and/or a pressing public policy concern outweighs the complainant’s interest in sexual autonomy.
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This article was first published by Thomson Reuters in the Criminal Law Journal and should be cited as A. Dyer, Mistakes That Negate Apparent Consent, (2019), 43, Crim LJ, 159.
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Keywords: mistakes, consent, sexual assault, Australian jurisdictions, stealthing, lies about or failure to disclose HIV positive status, deceiving sex worker about payment
JEL Classification: K10, K14, K30
Suggested Citation: Suggested Citation