Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law

Jonathan Crowe, Rachael Burgin and Holli Edwards, ‘Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law’ (2023) 50 University of Western Australia Law Review 284

32 Pages Posted: 10 Mar 2023

See all articles by Jonathan Crowe

Jonathan Crowe

University of Southern Queensland - School of Law and Justice

Rachael Burgin

Swinburne University of Technology - Swinburne Law School

Holli Edwards

Bond University, Students

Date Written: March 7, 2023

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.

Keywords: rape, sexual assault, affirmative consent, mistake of fact

Suggested Citation

Crowe, Jonathan and Burgin, Rachael and Edwards, Holli, Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law (March 7, 2023). Jonathan Crowe, Rachael Burgin and Holli Edwards, ‘Affirmative Consent and the Mistake of Fact Excuse in Western Australian Rape Law’ (2023) 50 University of Western Australia Law Review 284, Available at SSRN: https://ssrn.com/abstract=4381029

Jonathan Crowe (Contact Author)

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

HOME PAGE: http://jonathancrowe.org/

Rachael Burgin

Swinburne University of Technology - Swinburne Law School ( email )

Holli Edwards

Bond University, Students ( email )

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