How to defend rape charges in Qld?
Facing a rape charge in Queensland is extremely serious. A conviction carries severe legal and personal consequences, including the possibility of a lengthy prison sentence and long-term effects on employment, family, and reputation. It is important to understand how rape is defined under Queensland law, what the prosecution must prove, and what legal options may be available to defend the charge.
What is rape in Qld?
Under section 349 of the Criminal Code Act 1899 (Qld), rape occurs when a person penetrates the body of another without consent, and without a reasonable excuse or honest and reasonable belief that consent was given.
From 23 September 2024, Queensland introduced affirmative consent laws under the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024. These laws mean that consent must be actively and clearly expressed. Silence, passivity, or lack of resistance is not enough.
Consent must be obtained for every sexual act, even within ongoing relationships. Past consent does not imply future consent.
What does the prosecution need to prove for rape in Qld?
To be found guilty of rape, the prosecution must prove beyond reasonable doubt that:
The accused penetrated the complainant’s body (or attempted to do so).
The act occurred without the complainant’s consent.
The accused knew there was no consent, or was reckless or indifferent to whether consent existed.
In most cases, the evidence turns on what each person said, did, or understood at the time. These cases are often described as ‘word-against-word’, making credibility and objective evidence critically important.
How does the new affirmative consent laws affect rape in Qld?
For any alleged offence committed wholly after 23 September 2024, the new affirmative consent laws apply. This means:
Each person must take steps to confirm the other is consenting.
If an accused did not say or do anything to check that the other person was consenting, they cannot rely on a mistaken belief in consent.
The only exception is where a person has a cognitive or mental health impairment that substantially prevented them from taking those steps, supported by expert evidence.
For offences committed before that date, the older law still applies. Under that framework, a person could argue they honestly and reasonably believed the other consented, based on what was said or done at the time.
Can I argue a mistake of fact in a rape case?
Before the law change, a defendant could rely on section 24 of the Criminal Code, known as the mistake of fact defence. It allows acquittal if the accused honestly and reasonably believed the other person was consenting.
Courts have made clear that this defence only applies where there is some evidence giving that belief an ‘air of reality’ - it cannot be speculative. Evidence such as text messages, body language, prior communications, or conduct before and during the act may be relevant.
After the 2024 amendments, the new section 348A narrows when this defence can be used. Unless the accused actively said or did something to confirm consent, they cannot argue they believed consent existed.
When is there no consent for a rape charge in Qld?
Section 348AA of the Criminal Code sets out a broad list of circumstances where consent is not present, including:
Where a person is asleep or unconscious.
Where they are affected by alcohol or drugs to the point they cannot consent or withdraw consent.
Where consent is obtained through force, threat, coercion, or abuse of power.
Where a person lies about a serious disease and transmits it.
Where there has been condom removal or tampering (known as stealthing).
These expanded definitions significantly increase the range of situations where consent will be legally absent.
What is the main evidence in a rape case?
Rape allegations are often made without independent witnesses. For that reason, identifying and preserving objective evidence is essential. Defence lawyers will typically consider:
Text messages, calls, or social media before and after the alleged event.
CCTV footage, Uber or GPS data, and digital timestamps.
Medical or forensic evidence, including the complainant’s Forensic Medical Examination Record (FMER).
Pre-text phone calls or recordings arranged by police.
Statements from witnesses who saw or spoke to either party around the time of the event.
Complainant’s prior communications, mental health, or inconsistencies that may affect reliability.
Each case is unique, and the best defence strategy depends on the available evidence and the credibility of each account.
Can I defend a rape charge in Qld based on misunderstanding or belief?
Yes, but only in limited circumstances. For older cases (before 23 September 2024), the defence may argue that the accused honestly and reasonably believed the complainant was consenting, based on communication or behaviour at the time.
For newer cases, this argument is restricted unless the accused took active steps to check consent. Simply believing or thinking that the other person was consenting, without asking or confirming, may not be enough to raise a defence.
How long does a rape case take to finish in Qld?
Most rape cases begin in the Magistrates Court and are then committed to the District Court for trial or sentence. Depending on the complexity of the evidence, cases can take 18 to 24 months or longer to reach trial.
Early advice from a criminal defence lawyer Brisbane can help shorten delays by securing disclosure, preserving evidence, and negotiating charges or factual issues where appropriate.
Will I go to prison for rape in Qld?
Rape is a crime punishable by life imprisonment. However, actual sentences vary depending on the facts, level of violence, and mitigating factors such as lack of criminal history, remorse, or early plea.
Even when imprisonment is inevitable, careful preparation can affect whether parole is available, and when.
If the offence involves a complainant under 16, courts must impose an actual term of imprisonment, unless there are exceptional circumstances under section 9(5) of the Penalties and Sentences Act 1992 (Qld).
How can a criminal lawyer help me in a rape case?
The early steps in defending a rape charge in Qld is crucial. Speaking to police without legal advice can seriously harm your defence. Early representation allows your lawyer to:
Obtain full disclosure and evidence from the prosecution.
Identify inconsistencies and weaknesses in the complainant’s account.
Engage forensic and psychological experts where needed.
Prepare for any pre-trial applications, including to exclude unfair evidence.
Protect your privacy and manage media exposure.
What should I do if I am charged with rape in Qld?
If police contact you or you have been charged with rape:
Do not attend an interview or provide a statement before speaking to a lawyer.
Do not contact the complainant or potential witnesses.
Preserve all electronic evidence, such as texts or social media messages.
Seek immediate legal advice from an experienced criminal defence lawyer.
Choosing the best rape lawyer Brisbane
Our criminal defence lawyers appear daily in Brisbane and Queensland courts for serious criminal offences. We are available for a confidential discussion about your case. No booking required.
📞 Speak to our leading Brisbane Criminal Lawyers on (07) 3012 6531. You can also request a confidential callback by filling in our Quick Enquiry form, which also includes access to our free guide 16 Things You Need to Do Now if Charged with a Criminal Offence.
The information provided is general in nature and does not constitute legal advice. Please contact our Brisbane criminal lawyers for specific advice about your case.
Last updated November 2025