Lawyers and women’s advocates say Queensland’s archaic sexual consent laws have created a system in which victims face hostility from the police and courts, amid a renewed push for legal reform.

Hundreds of letters have arrived on the desks of state ministers this week, calling for changes to sexual assault laws, particularly the “mistake of fact” defence. Accused rapists in Queensland can beat a charge by claiming they honestly believed a sexual encounter was consensual, even when it was not.

Rape and sexual violence cases are notoriously difficult to prosecute in the state.

Julie Sarkozi, a solicitor at the Queensland Women’s Legal Service, said criminal cases had failed because sexual assault victims had been “drunk, asleep, intoxicated, disabled and even unable to speak English”.

The result is a system that treats complainants with cynicism rather than compassion long before they enter the courtroom, advocates say. They argue that police attempt to test the credibility of the victim, to poke holes in her story.

“That’s exactly what happens much of the time,” Sarkozi said. “Police don’t focus on the credibility of the complaint; they instead look at the credibility of the complainant. Practically, that means that the [police] will almost disregard what has happened and look at who it happened to.

“I’ve had clients who told me that [they had] told police they’d been drinking, or they’d been flirting with [the accused]. Immediately in those situations, the police don’t focus on the credibility of her complaint, but they seem to view her through a negative prism of ‘she’s a slut’, ‘she’s a drunk’ or ‘she led him on’.

“[Police] continue to struggle under the illusion that there is a real rape: that it happens in public, it happens by a stranger and there’s a physical injury. The research doesn’t support that.”

In November, a woman walked into a Gold Coast police station to report a sexual assault. In front of her rape crisis counsellor, the police officer told her there were “no real rapes” on the glitter strip.

“What we have most of the time is buyer’s regret,” the officer said.

The ‘mistake of fact’ defence

In March, the retired Queensland supreme court justice Roslyn Atkinson said the “mistake of fact” defence was outdated and could allow men to invoke rape “myths” to escape conviction.

The lawyer and writer Bri Lee and the Bond University law professor Jonathan Crowe have co-authored a study and created a website to demonstrate how the defence has been used, particularly against vulnerable complainants, including children and people with disabilities.

Lee has organised the letter-writing campaign.

“There’s nothing particularly bold about [calls for reform], particularly when you consider Queensland in this particular area of law is years behind the rest of Australia,” Lee said. “People just cannot seem to believe this is what the law actually is in Queensland.”

Opponents to change have argued that removing the defence would be a “romance killer”.

Sarkozi has represented victims who had been badly injured but did not secure a conviction “because of the power of cross-examination, and because the jury has its own biases about what a real rape survivor should look like”.

“Society also has the version of rape occurring to virgins who don’t drink and get raped by strangers,” she said.

Sarkozi said the legal situation created a “trickle-down” effect that influenced the way police responded to rape complaints. She said that while the law needed to be reformed, Queensland police also needed to engage in a whole-of-systems audit and review related to rape and sexual assault.

“The police are aware of how information is going to come across in a court,” Sarkozi said. “They’re aware how she might be cross-examined. While I understand how they might be trying to help the victim with their expectations about what might happen in court, it really backfires. Victims end up walking away from reporting to the police thinking ‘the police don’t believe me, the police think there is no point’.

“[Police] seem to focused on the end game and that does mean they can behave in a really appalling way. They seem to be blind to the living, breathing, distressed victim, and only concerned about the conviction rate.”

The police service said in a statement the QPS was “committed to providing a timely and professional response to supporting victims of sexual assault”.

“There are various levels of mandatory and discretionary investigative and awareness training undertaken by police regarding responses to sexual assaults and dealing with vulnerable persons,” the statement said. “This includes a range of investigative courses, recruit training and online learning products specialising in dealing with victims and a greater focus on domestic and family violence.”

The state attorney-general, Yvette D’Ath, said the government was considering the views of legal stakeholders and reviewing court of appeal judgments handed down in the past 20 years.

“Sexual assaults are particularly heinous crimes and people who commit these offences must be held to account,” D’Ath said.