Victims’ groups have called for an urgent review into Queensland’s sexual assault laws after a man accused of raping his ex-partner was found not guilty after a jury trial.
There are specific calls for a broadening of the rules relating to consent, which currently allow Queenslanders to be acquitted if they hold a genuine but mistaken belief that the other party consented to sexual intercourse, and for juries to be informed about the defendant’s other convictions.
The calls come in the wake of the case of ‘*Kate’, who’s ex-partner allegedly sent her text messages apologising for raping her.
The texts were ruled inadmissible on the basis that they are unfairly prejudicial to the accused for a number of reasons, including the uncertainty regarding what they refer to.
According to Kate, just days after her ex-partner forced her to have sex with him while their baby was in another room, he sent her a text saying: “I’m sorry I forced you to have sex with me.”
Two other texts allegedly referred to being forceful, saying: “I can’t keep forcing you to make love to me …” and “I can’t keep having my desires for you … and being forceful like I have …”.
Queensland District Court judge, Greg Koppenol, excluded the texts after finding:
“ … I am satisfied that the prejudice and the equivocal nature of the subject text messages as an admission outweighs the probative value of those text messages, and thus, in my view, it would be unfair to admit them …”
Trauma of court
The complainant has expressed the view that she was by the court, after being cross-examined by a criminal defence lawyer about her inability to recall the dates of the alleged offences.
Kate says that after her partner moved out of their home, he texted her constantly, and the texts became abusive and violent.
Her ex-partner ultimately pleaded guilty to stalking after sending almost 2000 abusive and obsessive text messages.
However, a jury found him not guilty of the rape charges.
During the trial, the jury was not permitted to know about the stalking charge as this could unfairly prejudice their determination of the allegations before them – which is standard procedure in jury trials.
Kate has since become an advocate for change, particularly in the laws that deal with the issues of consent and prior convictions.
She wants the state’s legislation to be amended so that previous instances of domestic violence are admissible in cases like hers.
But members of the legal profession are concerned that broadening consent laws and placing information about other offences before juries could unduly sway them to convict, despite a lack of evidence, potentially leading to innocent people spending years behind bars.
Review of consent laws in NSW
The issue of consent is currently being reviewed in New South Wales after the story of Saxon Mullins hit media headlines earlier in the year.
Her case involved a 5-year legal battle after she accused Luke Lazarus of sexually assaulting her in an alley way behind a Kings Cross nightclub in 2013.
Throughout the two trials, Ms Mullins claimed she did not ‘consent’ to sexual intercourse after following Mr Lazarus out of the club and to the ally, but complied with “a demand … from someone I had never met before. In a dark alleyway. Alone. And I was scared.”
Mr Lazarus spent 11 months behind bars before his conviction was overturned on appeal.
The appeals court found the evidence was incapable of excluding a reasonable possibility that he held a genuine and reasonable belief that Ms Mullins was consenting to the intercourse.
Review by the Law Reform Commission
The review will examine Mullins’ case in detail, and compare laws in other countries and other Australian jurisdiction, such as Victoria and Tasmania, which have some of the toughest consent laws in the country.
The NSW government wants the law to be changed to make it easier to convict those who are accused of sexual assault.
NSW Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, has called for changes which reflect that, “You must explicitly ask for permission to have sex and if it’s not an enthusiastic ‘yes’ then it’s a ‘no’,”.
But the NSW Law Society opposes the changes, describing current consent laws as appropriate and expressing concerns about the ability to receive a fair trial, and the increased likelihood of wrongful convictions.