Mistakes That Negate Apparent Consent

A. Dyer, "Mistakes That Negate Apparent Consent", Criminal Law Journal, 43, 2019, pp. 159 - 179

Sydney Law School Research Paper No. 19/51

22 Pages Posted: 16 Aug 2019

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: August 13, 2019

Abstract

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.

Note: This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.au

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

Dyer, Andrew, Mistakes That Negate Apparent Consent (August 13, 2019). A. Dyer, "Mistakes That Negate Apparent Consent", Criminal Law Journal, 43, 2019, pp. 159 - 179; Sydney Law School Research Paper No. 19/51. Available at SSRN: https://ssrn.com/abstract=3432853

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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