Queensland’s rape and sexual consent laws: an overview
Rape is one of the most serious criminal offences in Queensland’s Criminal Code, punishable by a maximum penalty of life imprisonment. In recent times, it has undergone significant law reform. Understanding the key principles and legal framework is essential for any person navigating this complex legal area.
Legal Definition
Under s349 of the Queensland Criminal Code, rape is the penile, digital or object penetration to any extent of another person’s vulva, vagina or anus without their consent. Rape also extends to non-consensual penile penetration of another person’s mouth, or where one person compels another to penetrate a third party without their consent.
Elements of the offence
For a person to be convicted of rape, the prosecution must prove, beyond reasonable doubt, that:
- The accused person penetrated (with their penis, fingers or other object) the victim either vaginally, orally or anally. Oral rape is restricted to penile penetration only.
- The victim did not consent to the penetration, and
- The accused either knew that the victim did not consent, or wilfully or recklessly penetrated when it was unclear whether the victim had consented.
Understanding consent – a new approach in Queensland
Queensland is now a jurisdiction where “affirmative consent” has been enshrined in the Criminal Code.
This means that the law requires people participating in sexual activity to take positive steps to ask for consent and for consent to be communicated back. Put another way, mere silence or lack of physical resistance does not, without more, constitute consent. There must be some sort of positive step or action indicating agreement that has been communicated to the other party.
Under the Criminal Code, consent must be freely and voluntarily given. Consent is invalid if:
- There is threats, violence, force or intimidation.
- The victim was asleep, unconscious or intoxicated to the point that they were incapable of properly consenting.
- There is coercion, abuse of authority or deception.
- There is abuse of a relationship of trust, authority or dependence.
- The person did not have the cognitive capacity to consent.
The law places an obligation on individuals to take reasonable steps to ascertain consent. What is “reasonable” may vary from case to case. Examples include asking for verbal confirmation of consent or appropriately responding to clear non-verbal cues.
Consent may be withdrawn at any time. This means that sexual activity that started off as consensual may become non-consensual (and therefore, criminal) if one party withdraws their agreement.
Stealthing is now also a part of the Criminal Code. Stealthing occurs where one party, without consent, removes a condom during sexual activity.
Intoxication
A person who is intoxicated may not be capable of consenting to sexual activity.
Voluntary intoxication is not a defence to a charge of rape. A person who voluntarily consumed drugs or alcohol is still responsible for their actions.
An accused’s voluntary intoxication, however, is still relevant to their perception of consent. An accused may honestly and reasonably believe that the other person was consenting to sexual activity, even though in reality there was not true consent. Voluntary intoxication may impact the accused’s person’s perception of the interaction. The question then becomes whether the honest and mistaken belief was reasonable in the circumstances of the case.
Defences to a rape charge
Available defences include:
- Consent. The victim in fact consented to the sexual activity.
- Honest and reasonable mistaken belief. The accused honestly, albeit mistakenly, believed that the other party was consenting, and this consent was reasonable in the circumstances. In these cases, there is now a focus on what, if any, active steps the accused person took to ascertain consent.
- Unsoundness of mind. The accused was deprived of their relevant mental capacity at the time of the offence.
- That the alleged offence did not happen at all
Properly defending a rape charge is a complex and expert task. It is necessary to explore the full circumstances of the allegations, including any communications by text, social media or via an app. It is not uncommon for DNA evidence to be relied upon by the prosecution.
Penalties for rape
Rape is punishable by life imprisonment. In Queensland, actual custody must be imposed for an offence of rape, unless there are exceptional circumstances.
Factors which impact the level of sentence include:
- Whether there was accompanying physical violence or threats.
- Whether the rape was penile or digital and if protection was used.
- The length of time over which the incident occurred.
- The presence or otherwise of coercion, or a breach of trust or authority.
- Whether the accused was aware of the lack of consent, or whether they were reckless to that fact.
For a person charged with rape, ensuring a proper defence is one of the most important decisions they will make in their life. The serious consequences of a rape conviction mean that it is imperative that you engage a legal team with specific and high-level rape trial experience.
This article is intended as a general overview and does not constitute legal advice. For specific legal advice, contact our team today.
Author: Rebecca Fogerty. Rebecca is one of Queensland's leading lawyers, with significant trial experience and a stellar record in defending rape and sexual assault cases.
