Innocence claims based on sexual consent

How should innocence projects respond when a person is found guilty of a sexual offence, but claims the victim consented?

The Bridge of Hope Innocence Initiative does not accept claims of factual innocence where:

the claim of innocence is for a sexual offence and the convicted person has admitted sexual contact with the victim

 This policy is not a judgement on the truthfulness of any claim of innocence, but a decision informed by the complexities of substantiating consent as part of our review process. 

The following outlines some of the complicated factors at play. 

Statistics on Innocence and Sexual Offences

Sexual offences are significantly underreported to police in Australia.

It is estimated that 1 in 5 women and 1 in 20 men in Australia have been sexually assaulted and/or threatened since age 15. However, according to the latest statistics most will not report their experiences to police, with just over a third of victims (39%) reporting their abuse in 2016-17.

Even when reports are made, very few go on to result in a conviction. Only 1 in 6 reports to police of rape and less than 1 in 7 reports of incest or sexual penetration of a child result in prosecution.

Given such sobering statistics, it is understandable that the general public have little sympathy for claims of factual innocence for those convicted of sex-related crimes. However, wrongful convictions for sexual offences do happen.

Estimating the number of false accusations of rape or sexual assault in Australia is very difficult, with studies overseas providing very broad estimates of false allegations ranging from 2% to 10% of all reports to police.

A study of 850 rape accusations made in Victoria found that 2.1% were ultimately classified by police as false, with the complainants then charged or threatened with charges for filing a false police report.

False allegations are not necessarily malicious in nature, with mental illness and faulty eye witness testimony being raised as common issues in the literature. 

There are no good statistics on the rate of false allegations where the fact at issue is whether the victim consented. Although there is much popular media speculation about victims withdrawing consent because of “next day regret” or for malicious reasons, this a topic that has not been sufficiently studied.

The Complexity of Consent and Guilt 

There is also somewhat of a disconnect between a perpetrator’s understanding of consent and the legal definition of consent under criminal law.

For example, under Australian law, consent will not exist if the victim is so intoxicated as to not understand the nature of what is occurring or if consent is given in response to ‘force or fear of force’. Importantly also, silence cannot be used as evidence of consent.

In all jurisdictions, a sexual offence will not have been committed if the perpetrator had a reasonable belief that the victim was consenting, although each State and Territory has a different wording on what this means. Moreover, this ‘defence’ is heavily conditional on the reasonableness of the perpetrator’s belief as well the legal definition of consent. 

As a result, a convicted person may claim factual innocence as they believed the victim was consenting even though they still met the legal criteria for guilt under criminal law.

Practical Risks and Alternative Options 

There are also practical limitations at play in reviewing claims of factual innocence in sexual crimes where consent is at issue.

As part of the review process, the Innocence Initiative may need to contact witnesses to confirm original statements to police. In the case of a sexual offence, this would require contacting a victim – risking further victimisation and trauma – something that is against our guidelines.

Our policy is not only to protect victims of crime, but also to limit the level of distress experienced by our dedicated staff and volunteers.
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If you are wishing to challenge your conviction of a sexual offence on the basis of consent, there are other options available to you. You should speak to a criminal defence lawyer about your options for appeal as well as an option to file a petition of mercy.

Written by Jarryd Bartle (July 31, 2019)