A common law defence known as the "rapist's charter" could be scrapped, following the outcome of an inquiry into proposed changes to the ACT's consent laws.
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The ACT Legislative Assembly's justice and community safety committee has been examining a private member's bill from Greens crossbencher Caroline Le Couteur that would require someone accused of sexual assault to prove they knew or were "satisfied on reasonable grounds" that consent was freely given.
It would also define consent as "free and voluntary agreement", as the meaning is not spelled out in the ACT's statute books.
However the committee has recommended the bill not proceed in its current form, with even Ms Le Couteur telling the inquiry she believed a new bill would need to be drafted to effectively deliver a strengthened legal model for consent.
The recommendation followed concerns from the legal fraternity, including the Human Rights Commission, that the bill as drafted would reverse the onus of proof and set the bar too high.
There were also concerns the bill conflated different elements of consent, and ignored the concept of recklessness, a critical element of how sexual assault cases are currently litigated.
However the committee has asked the government to consider installing a positive definition of consent, after advocacy groups said there was a need for clarity over what constituted saying "yes".
The ACT is the only jurisdiction in Australia without a definition of consent, although outgoing Director of Public Prosecutions Jon White said having one was unneccessary as it was inherent in the meaning of consent that it be freely and voluntarily given.
The committee said any change to the definition of consent should not require a perpetrator to prove they knew consent was given, and be delayed until a NSW Law Reform Commission inquiry into the state's consent laws is resolved.
That inquiry was announced following the high-profile acquittal of Luke Lazarus, who was accused of raping 18-year-old Saxon Mullins in an alleyway behind his father's King Cross night club in 2013.
The District Court acquitted Mr Lazarus after a retrial in 2017, finding his belief in consent was reasonable.
However the committee has called on the ACT government to seek legal advice on scrapping the common law defence of honest mistake, sometimes called the "rapist's charter".
That defence arose from a 1973 rape case from the United Kingdom, where a Royal Air Force pilot named Morgan invited three junior colleagues over to his house in 1973 to have sex with his wife, telling them she was "kinky" and would protest.
When charged with rape, the three colleagues told the court they honestly believed Mrs Morgan consented to sex, but were convicted of rape.
They later appealed to the House of Lords, which upheld their convictions, but ruled that an honest but mistaken belief a victim was consenting was a complete defence to rape, and the belief did not need to be reasonable as long as the offender honestly held it.
Mr White told the committee it was time to "sweep away the last vestige of the notorious case of Morgan" from ACT case law.
However the ACT Bar Association said the reasonableness of the belief was already taken into account when assessing whether a defendant honestly thought the victim consented.
"The more unreasonable a belief may be, the less likely it is to be considered that there is any doubt about the honesty of the belief held," the association's Dr Anthony Hopkins said.
