From her perspective, there was never any question that what happened that night was rape. But to Lazarus, and to the law, it wasn’t. Initially he was convicted by a jury, but that was later overturned. Upon his retrial, Judge Robyn Tupman determined that Lazarus reasonably believed the teenager was consenting, and acquitted him. Similarly, marie claire acknowledges that Lazarus was acquitted of all charges and has expressed his remorse and sadness over the events that transpired.
However, Judge Tupman also accepted that the young woman believed she wasn’t consenting. It’s an inconsistency that still keeps Mullins, now 24, awake at night. “I genuinely still feel baffled,” she tells marie claire. “I just don’t understand how those two things co-exist: I didn’t consent but he didn’t know that?”
Lazarus was acquitted on the basis of the 'mistake of fact' defence, an archaic criminal law defence that enables defendants to argue that they had an honest and reasonable – but mistaken – belief that the woman they forced themselves upon had consented.
New South Wales and Queensland are the only remaining states in Australia where the mistake of fact legal loophole still exists for sexual crimes, and both states are currently examining the laws. The Attorney-General in NSW immediately referred the state’s sexual consent laws for review after a Four Corners report on Mullins aired in May 2018.
In July, after several months of intense campaigning, Queensland’s Attorney-General, Yvette D’Ath, finally announced a review. The government referred consent and mistake of fact rape cases to the state’s Law Reform Commission and wants a response by February 2020.
Solicitor Julie Sarkozi, from the Queensland Women’s Legal Service, says it is alarmingly common for sexual assault cases to fail because of the mistake of fact defence.
“The ordinary person would be shocked at how that particular defence is applied in court when it relates to sexual offences,” Sarkozi says, claiming it deters victims of sexual assault from even pressing charges.
“Again and again, victims go to report an offence and even at the earliest stage they are getting the impression that their matter is not going to be advanced,” she says. “From what I see, there is a trickle-down effect. We have these laws and, right at the coalface, police themselves are saying, ‘We’re not going to proceed with a complaint or charge because we don’t think we’ll get a conviction – the accused will say, ‘But I thought she was consenting.’”
This legal loophole sets the bar impossibly low for anyone accused of sexual offences and impossibly high for anyone seeking a conviction.
The time for reform is now. marie claire is joining forces with the Queensland Women's Legal Service who have been passionately advocating for years for the state's consent laws to be changed. If you would like to add your voice to the case for changing these laws, sign their petition here.
For the shocking full report, pick up a copy of the October 2019 issue of marie claire. On sale now.
Photography by Alana Landsberry.
