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Who Will Become a Queensland Rapist?

Kirra blackmails Luka into having intercourse with Milo.

Milo knows nothing about Kirra’s threats.

Luka finds Milo in bed, climbs in, and initiates.

Milo is surprised but happy about Luka’s attentions.

Milo does not say or do anything. Milo just passively enjoys what Luka is doing.

Is Milo a rapist?

Is Luka?

Changes proposed to Queensland’s law will produce some surprising answers.

The first answer will be yes. Milo will be a criminal.

Luka has not consented, because Luka’s agreement was obtained by fear of harm.

Milo will not be able to rely on an honest and reasonable belief in Luka’s consent – because Milo did not say or do anything to ascertain that Luka consented.

“A belief by the person that another person
consented to an act is not reasonable if the person
did not, immediately before or at the time of the
act, say or do anything to ascertain whether the
other person consented to the act.” [1]

Luka will be saved from conviction by Milo’s silent agreement.[2]


But, suppose Milo had not welcomed Luka’s attentions. If Milo lay there in silent, shocked, unhappy disagreement, then Luka would be guilty of assaulting or raping Milo. Luka could not rely on Milo’s lack of objection.[3] Luka could not rely upon an honest and reasonable belief because Luka did not do or say anything to ascertain Milo’s consent.

Luka might not be able to rely upon the “duress” of Kirra’s blackmail, if Kirra didn’t threaten serious harm or detriment, or if Luka could reasonably have otherwise dealt with the threat.[4]

Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 (Qld)

https://documents.parliament.qld.gov.au/tp/2023/5723T1615-90AD.pdf


[1] Proposed section 348A(3) Criminal Code (Qld) – Clause 14 Page 24 of the Bill

[2] If “agreement” is to a be a state of mind, which may be implied by the Bill’s removal of the requirement that consent be “given”.

[3] Proposed s.348(3) Criminal Code – Clause 13 Page 20 of the Bill. Under the current provisions, Milo has not “given” consent.

[4] Section 38(d) Criminal Code




#criminallaw #criminallawyer #criminaldefense #thisisqueensland #rape #sexualabuse #vawg #sexualassault #sexualviolence #consentmatters #consent

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