The Council maintains its position that the advancement of women’s equality and protecting them from violence cannot come at the expense of fundamental legal principles and arrangements designed to protect the liberty of everyone
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what seems right is to use law to protect the bodily safety of prostitutes from assault, to protect their rights to their incomes against the extortionate behaviour of pimps, to protect poor women in developing countries from forced trafficking and fraudulent offers, and to guarantee their full civil rights in the countries where they end up—to make them, in general, equals under the law, both civil and criminal….But the criminalisation of prostitution seems to pose a major obstacle to that equality
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One area of inequality is that of social status. Anti-discrimination law is directed at addressing inequalities of social status. It seeks to deal with the fact that some people in our society are denied “goods on the basis of the widely held view that certain facts about them, such as race, gender, or religion make them less entitled to those goods than others are. The fact people are subject to a widely held view of inferiority of this kind- of being less entitled to important goods and opportunities, and less suitable for valued forms of personal relationship-is a distinctive feature of discrimination
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We submitted that the law should reflect the proposition that in determining whether or not an accused’s belief that a person was consenting was reasonable, the jury should be able to take into account whether the accused was aware of circumstances which would lead a reasonable person to inquire further into the issue of consent. So that if the circumstances known to the accused were such that a reasonable person would not or might not take further steps to ascertain consent, then the accused will not be required to take any further steps either.
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There is a difference between how our Criminal Code deals with the defence of mistake and how the Common Law deals with it. At common-law, a person will succeed in a defence of mistake of fact, if they held the belief in the mistaken fact honestly. However, under the Queensland Criminal Code the mistake of fact defence can only succeed when a person not only honestly has made a mistake, but their belief is reasonable.
Once again, public commentary on this issue seems to ignore the fact that Queensland law already provides for a mixture of subjective and objective factors in assessing whether or not the accused has made a mistake of fact. In particular, in our review of the law we found no support for the view that “reckless indifference” would ever be consistent with the reasonableness requirement in the Criminal Code
The Queensland Council for Civil Liberties today welcomes the decision of the Queensland Government to introduce legislation outlawing the covert filming of people in private places engaged in intimate acts.
The Annual Report of the Vice-President, Terry O’Gorman - June 15, 2020
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