Rape & Affirmative Consent in Qld
Introduction
Major changes to Queensland’s consent laws came into effect on 23 September 2024. This affects how defences to charges of Rape and other sexual offences can be raised. Rape carries a maximum penalty of life imprisonment. Seeking early legal advice is critical for a successful defence.
What has changed?
Under the amended Criminal Code 1899 (Qld), section 348A, now requires affirmative consent. This means:
A defendant can no longer argue honest and reasonable mistake of belief as to consent if the defendant did not say or do anything to ascertain consent.
Silence, passivity, or lack of resistance is no longer enough. The law requires both parties to do or say something that clearly indicates mutual agreement to engage in each sexual activity.
If you have been charged with rape or a similar offence, and you did not take reasonable steps to confirm consent, you may no longer be able to rely on a mistaken belief defence.
What Is Stealthing?
As part of the same law reform, stealthing - the non-consensual removal or tampering with a condom has been criminalised.
If a person consents to sex with a condom, that does not mean they are consenting to sex without a condom. Engaging in sexual activity after removing or tampering with a condom without the other person's knowledge can constitute rape.
Circumstances where there is no consent
Section 348AA sets out a range of scenarios where the law says consent is not present. These include:
The person does not say or do anything to communicate consent.
The person lacks cognitive capacity.
The person is too intoxicated to consent or to withdraw consent.
The person is unconscious or asleep.
The person participates due to force, fear, coercion, blackmail, or intimidation.
The person or someone else is unlawfully confined or detained.
The person is overborne by a relationship of authority, trust, or dependence.
The person is misled about the nature or purpose of the act.
The person is mistaken about the identity of the other party or believes they are married to them.
A sex worker is misled about payment or reward.
The person suffers grievous bodily harm in connection with the act (unless proven otherwise).
Can consent be withdrawn?
Yes.
Even if someone initially agrees to engage in sexual activity, they can withdraw their consent at any time. If they say ‘no’ or express discomfort, this could be taken as a withdrawal of consent. Sexual activity needs to stop at this point. Failure to do so can result in criminal charges.
Why early advice is crucial
The introduction of affirmative consent laws has narrowed the defence available to the charge of rape. In particular, the changes limit the ability to argue that a person believed the other party was consenting unless they can show they took steps to verify that consent.
If you are charged with rape, or being investigated:
Do not attempt to contact the complainant.
Do not make a statement to police without legal representation.
Contact an experienced criminal lawyer immediately.
Contact us
Our criminal defence lawyers have significant experience in sexual offences. If you or someone you know has been charged with rape or sexual assault, call our Brisbane criminal lawyers on (07) 3012 6531 for a free 15 minute phone consultation.