Controversial rape defence ‘common sense’
A RESPECTED Gold Coast criminal lawyer has defended the controversial "mistake of fact" defence in rape cases as "common sense".
In Queensland a rape accused can argue they honestly and reasonably thought they had consent when the sexual contact took place.
The defence is known as "mistake of fact".
The law has come under fire in recent weeks with sexual assault advocates describing it as an "archaic legal loophole".
Mistake of fact has been used by people to argue they thought they had consent even when the alleged victim was drunk to the point of passing out.
The LNP recently promised to overhaul the laws, arguing it allowed rapists to walk free by claiming they were so intoxicated they thought the victim had consented.
Nyst Legal managing director Chris Nyst criticised the LNP's position as "rushing with an obscene haste" with a "predetermined view".
"Anyone who truly understands (mistake of fact) will conclude it is based on nothing more than everyday common sense," he said.
In an 800-word blog post Mr Nyst defends mistake of fact as similar to self-defence in a home invasion.
"For example, someone walks into your house in the middle of the night brandishing a knife, and as a result you honestly believe you are under physical attack, so you strike out at them to defend yourself, you can rely on a defence of self-defence, even if the intruder swears they had no intention of hurting you," he said.
"It doesn't matter what was actually in their mind, provided you honestly, albeit perhaps mistakenly, believed they were attacking you, and the jury accepts that it was reasonable for you to have that belief in all the circumstances."
Mr Nyst points out the mistake of fact defence cannot be used by someone just claiming they were drunk so they thought they had consent.
"The mistaken belief has to be shown to be both honestly held and, importantly, demonstrably reasonable in all the circumstances," he said.
Mr Nyst said the defence is designed to "exonerate the innocent".
"When its application is properly and sensibly considered, it is easy to understand why the defence has endured for many centuries, because it is absolutely and essentially in line with ordinary, common sense concepts of what is fair and right and reasonable in everyday human interaction," he said.
"It is exactly the standard every one of us would hope and expect to be applied if we or any of our loved ones were accused of criminal behaviour."
Mr Nyst said in rape cases it was up to 12 jurors to decide if the accused honestly thought they had consent and if that opinion was reasonably held.