Sexual Consent Laws in Queensland: An Overview

In February 2021, the Legal Affairs and Safety Committee of the Queensland State Parliament tabled its report into the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Bill 2020.  The Bill clarifies the definition of consent in several ways.

I am under investigation by police. What are my rights?

If have not yet been arrested or charged with a criminal offence, but are under investigation by police, you have certain rights that must be met by the police.

These rights may vary depending on the nature of the investigation and the evidence to be obtained.

Case Law Update – What does “choking” mean under the Queensland Criminal Code?

Section 315A of the Criminal Code makes it a criminal offence to “choke”, “strangle”, or “suffocate” a person in a domestic setting.  It carries a maximum penalty of 7 years’ imprisonment.

The offence was introduced by the Palaszczuk Government on 5 May 2016 following a recommendation made by the Special Taskforce on Domestic and Family Violence in Queensland.

The Criminal Code does not provide a definition of ‘chokes, suffocates or strangles’ and there has been uncertainty about what level of conduct is required to fall within the provision.  For instance, is external compression on the throat or windpipe sufficient, or does the complainant’s breathing need to be affected?

The Universal Right to Plead One’s Case – Proctor, Queensland Law Society, September 2019

Written by Rebecca Fogerty, this article was published in the September 2019 edition of Proctor. Our criminal justice system has been long criticised for how it deals with sexual crimes.  A maxim for activists in this area is to “believe victims”.  This is important in the therapeutic realm but harder to reconcile in a justice system where a central tenet is the presumption of innocence. There are now calls for defendants in sexual assault cases to be banned from using the ‘mistake of fact’ defence.  This is a mistake and would undermine the integrity of our system of justice.

Changes to Special Hardship Orders

New rules now apply to Special Hardship Orders.

What is a Special Hardship Order? A Special Hardship Order is an order granted by the court that allows a suspended driver on a provisional or open licence to continue driving under restrictions. It is not the same as a work licence and the eligibility requirements are different.

A Special Hardship Order will only be granted if you can …

In the news: It’s a mistake to abolish the “mistake of fact” defence

The defence of “mistake of fact” has been in the news lately.  Various commentators have argued that the law, in the context of rape and sexual assault offences, should be abolished.

It must be said that there is considerable confusion about the ‘mistake of fact’ defence in Queensland, even among those who oppose its abolition.

The defence is contained in section 24 of the Criminal Code.  It applies to all criminal offences, not just rape.

Extending the definition of murder is a risky move

Following a review by the Queensland Sentencing Advisory Council, in February 2019 the Queensland government introduced new laws to widen the definition of murder.  Previously, in order to convict a person of murder, the prosecution had to prove beyond a reasonable doubt that the accused person both acted and intended to kill or cause grievous bodily harm.  The new changes mean that a person may be convicted of murder if their actions were “recklessly indifferent to life”.