Why the Defence of “Mistake of Fact” in Rape Cases Matters

Criminal Defence Lawyer Brisbane - Why the Defence of “Mistake of Fact” in Rape Cases Matters

“That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved” – Benjamin Franklin.

Recently, certain commentators have called to abolish the defence of ‘mistake of fact’ in rape cases. Some advocates for reform have written extensively on the subject but in doing so have misstated how the defence is established and mischaracterised its application in the case law.

The Queensland Criminal code states that “Consent means consent freely and voluntarily given by a person with cognitive capacity to give consent” (Section 348(1)).

The Code also provides a defence of mistake of fact where “a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things” (s. 24).

Importantly, an honest belief must be a belief that is genuinely held and a reasonable belief is one that a person holds that, in the particular circumstances, is reasonable.

Bri Lee, author of consentlawinqld.com states that reform is needed as the law as it currently stands allows ‘calculated, predatory offenders, as well as reckless and opportunistic ones’ to use the defence to ‘evade responsibility.’

When a defendant contests a charge of rape at trial, if the defence of mistake of fact is raised, the reasonableness of the defendant’s belief is to be considered and determined by the jury – 12 members of the public.

It is difficult to imagine circumstances where the defendant’s behaviour was reckless AND reasonable.

The defence is a ‘loop-hole to escape liability.’ It is also incorrect to say that it is irrelevant as to whether consent is given, so long as a person thinks they have consent. The law clearly states the belief as to consent must be genuine and reasonable and those questions are, again, to be determined by a jury, not lawyers or judges.

The state of these laws in Queensland, or anywhere else, is imperfect. We as society live with many grey areas that are subjective and cannot simply be governed or assessed as ‘black or white’ scenarios. This is exactly why our justice system utilises juries, made up of ordinary citizens, to apply common sense and logic to situations. Of course, juries are obligated to make decisions within the bounds of the laws, however issues such as ‘reasonableness’ or ‘genuine belief’ are to be interpreted and applied as they would ordinarily be in any scenario.

It is suggested the law allows a person greater leniency for their actions/decision if they were intoxicated at the relevant time. Again, this is incorrect. The case of Hopper illustrates this point by the comment of the court that, “a mistaken belief that is induced by intoxication is not one that can be considered ‘reasonable’ as distinct from honest” and “if the appellant’s belief that the complainant was consenting was not capable of being considered ‘reasonable’, then it could not affect the verdict in the case.”

In summary, whilst a person’s level of intoxication may affect how ‘genuinely’ or how ‘honestly’ they believe in a certain state of affairs, but it simply does not affect the reasonableness of that belief.

Calls for reform in this area give insufficient consideration to the role of the jury in applying the defence.

Our laws quite appropriately provide for defences which, if successful, require that a jury be satisfied to the requisite standard. To that end, we have summarised below some of the cases identified in the articles and the relevant website, to provide a more comprehensive and accurate reflection of the state of those cases:


  • A 13-year-old complained of having been raped on four occasions by a family friend;
  • Her version of events suggested the rapes were forceful and without consent, despite admitting only resisting on one occasion;
  • The defendants’ versions were starkly different in relation to the events, in that he stated there was no sexual contact between them;
  • The jury found the defendant guilty of rape x 1 and unlawful carnal knowledge x 2;
  • The only reasonable explanation for the jury’s verdicts are that they did not believe the defendants story and somewhat accepted the complainants version;
  • Obviously, the jury were satisfied that in all the circumstances, a reasonable person would have believed the girl was consenting;
  • The Court of Appeal ruled that the conviction for rape was inherently inconsistent with the two convictions for carnal knowledge. Therefore, the conviction for rape was substituted with a third conviction for carnal knowledge;
  • Significant discussion was conducted about whether to order a re-trial due to the inappropriate behaviour of the Judges associate during the trial.


  • Solomon convicted of rape after trial;
  • Solomon and complainant’s versions of what occurred varied considerably;
  • Complainant claimed she woke up to Solomon raping her;
  • Solomon claimed they engage in consensual sex after spending the night together, drinking, consuming marijuana and flirting;
  • Solomon detailed many, inherently consensual, sexual acts that preceded consensual intercourse;
  • Jury obviously preferred complainant’s version and convicted Solomon of rape;
  • Appeal granted and re-trial ordered because jury were not made aware of ‘mistake of fact’ defence – which would have allowed the jury an alternative consideration, that being the genuine and reasonable belief of Solomon;
  • At trial, jury effectively only had a choice of who’s version to believe;
  • Solomon’s intoxication would only be relevant to his ‘belief’, not ‘reasonableness’.