Rape – I thought she consented, what does the law say in Qld?
What is consent in rape charges?
Consent in Queensland law means free and voluntary consent. Since 23 September 2024, silence or inaction is not consent. There must be clear, affirmative communication.
If someone later claims they did not consent, even where you thought they were consenting, the prosecution may still charge you with rape. This has been the situation faced by many of our clients.
Under section 349 Criminal Code 1899 (Qld), rape carries a maximum penalty of life imprisonment.
When is there no consent?
Section 348AA sets out circumstances where consent does not exist. Some common examples include:
no words or actions showing agreement
being too drunk or drug-affected to consent
being asleep or unconscious
giving in because of fear, threats, or intimidation
abuse of trust or authority
deception about identity or the nature of the act
removing or tampering with a condom without agreement
Can mistaken belief be a defence to rape in Queensland?
Yes, but only in limited circumstances. Section 348A allows a defence of ‘mistake of fact’ where a person honestly and reasonably believed there was consent. The law is strict:
the belief must be honest and also reasonable
intoxication of the accused cannot be relied on
the accused must have said or done something to check consent at the time
If nothing was done to confirm consent, a belief is unlikely to be considered reasonable.
How do courts decide if consent was given?
To convict, the prosecution must prove two things beyond reasonable doubt:
penetration occurred, and
it happened without the complainant’s consent.
Courts look at:
the complainant’s version of events
text messages, dating app chats, or social media evidence
witness accounts from friends or housemates
forensic evidence such as injuries, DNA, or condom use
The defence may challenge inconsistencies, intoxication levels, or credibility.
What defences can be raised in rape cases?
Possible defence strategies include:
arguing insufficient evidence to prove there was penetration
proving the complainant gave consent
raising an honest and reasonable but mistaken belief in consent
showing inconsistencies or motives to lie
The right defence depends on the specific facts of the case.
What sentence can be given for rape in Queensland?
The maximum penalty is life imprisonment. Sentences depend on factors such as:
whether violence or coercion was used
the complainant’s age or vulnerability
the accused’s criminal history
whether the case went to trial or guilty plea was entered
In practice, imprisonment is almost always imposed if a person is convicted of rape. For that reason, it is critical to discuss mitigation strategies early.
These may include presenting character references, evidence of rehabilitation, psychological reports, and demonstrating insight and remorse. While the starting point is a custodial sentence, careful preparation can make a significant difference to the length of imprisonment.
What should I do if I am accused of rape in Queensland?
If you are under investigation or police have contacted you:
do not speak to police without a lawyer present
do not contact the complainant
keep any evidence such as text messages or social media conversations
call an experienced rape lawyer in Qld immediately for advice
Frequently asked questions about consent in rape cases
Can silence be taken as consent in Queensland? No. Silence or doing nothing is not consent under current law.
What if we were both drunk? If a person was too intoxicated to consent, the law says there was no consent. The accused’s own intoxication is not a defence.
Can someone change their mind halfway through? Yes. Consent must continue throughout. Once it is withdrawn, further activity can amount to rape.
Will I go to jail if I am convicted of rape in Qld?
Queensland courts treat rape as one of the most serious offences. However, the length of the sentence can vary. With the right preparation, an experienced criminal defence lawyer can raise mitigation strategies such as character references, psychological reports, and evidence of rehabilitation to reduce the penalty as much as possible.
How do I find the best rape lawyer in Brisbane?
When facing a rape allegation, you need a criminal lawyer with proven experience and a track record in successfully defending serious charges.
If you are facing a rape charge or police investigation, you need urgent legal advice. Call (07) 3012 6531 or complete our Quick Enquiry form for a confidential discussion with our best criminal lawyers about your case.
The information on our website is general in nature and does not constitute legal advice. Please contact our team for specific advice about your case.