What is affirmative consent in Queensland and how does it affect rape charges?
From 23 September 2024, Queensland officially adopted an affirmative model of consent for sexual offences. This means that every person involved in a sexual act must take active steps to ensure the other person is consenting. Silence or lack of resistance is not enough.
These changes are part of the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 and represent one of the most significant reforms to Queensland’s sexual offence laws in decades.
What is affirmative consent?
Affirmative consent means each person must say or do something to confirm the other person agrees to sexual activity.
In simple terms: if you do not clearly check that the other person is consenting, either through words or conduct, you risk committing an offence.
Consent under section 348 of the Criminal Code 1899 (Qld) now means ‘free and voluntary agreement’, and it must be communicated and ongoing.
Key points under the new law:
Consent must be expressed through words or clear actions.
Silence or lack of resistance is not consent.
Consent must exist for each act, it cannot be assumed from previous encounters.
A person can withdraw consent at any time during the act.
A belief in consent is not reasonable if the person did not say or do anything to check that the other person was consenting.
When is there no consent?
Section 348AA of the Criminal Code sets out circumstances where consent does not exist. These include when:
The person is so affected by alcohol or drugs they cannot consent or withdraw consent
The person is asleep or unconscious
The person participates because they are overborne by authority, trust, or dependence
The person’s consent was obtained through threats, coercion, intimidation, or deception
The person lied about having a serious disease and transmitted it to another person
The person agrees to sex with a condom, but the other party:
does not use one
removes it without their knowledge
tampers with it, or
realises it is no longer effective but continues anyway
This last category is commonly known as ‘stealthing’, which is now expressly criminalised in Queensland.
Is mistake of fact a defence to rape?
Under the former law, a person could rely on a ‘mistake of fact’ if they honestly and reasonably believed the other person consented, even if they were mistaken.
Under the new section 348A, this defence is significantly narrowed.
A belief that the other person consented is not reasonable unless the accused said or did something to check consent immediately before or during the act.
Additional key changes:
Voluntary intoxication (from alcohol or drugs) cannot be used to justify a mistaken belief.
Defendants with a cognitive or mental health impairment may still rely on the defence, but only if expert evidence proves that impairment substantially caused their failure to check consent.
This change shifts the focus from what the accused believed to what they did to confirm consent.
What about rape charges before September 2024?
The new affirmative consent laws apply only to offences allegedly committed wholly after 23 September 2024. Older allegations will still be dealt with under the previous law. If an offence spans both periods, transitional provisions under section 761 of the Criminal Code determine which version applies.
How does the prosecutor prove lack of consent for rape charges in Qld?
To convict someone under the new affirmative consent laws, the prosecution must prove beyond reasonable doubt that:
The complainant did not freely and voluntarily agree to the sexual act; and
The accused did not take steps to ascertain consent immediately before or at the time; and
The accused’s belief in consent (if any) was not honest or reasonable.
The prosecution no longer has to rely on facts such as resistance, violence, or a physical struggle, only the absence of affirmative communication of consent.
How to defend rape charges in Qld
Defending these allegations requires a detailed understanding of what was said, done, or understood before and during the sexual activity.
Key considerations include:
Any words, messages, or conduct showing communication of consent
Context - how the interaction developed, who initiated, tone, and body language
Objective evidence such as texts, CCTV, social media, or audio recordings
Whether the accused’s personal circumstances (e.g. language barriers, cognitive issues) affected their ability to check consent
Our Brisbane criminal lawyers will obtain your comprehensive instructions and examine every detail of the interaction between you and the complainant, as these cases now turn heavily on any communication of consent.
How does the new affirmative consent laws affect rape charges in Qld?
These reforms significantly expand the scope of sexual offences and will likely result in more charges being laid. Police and prosecutors will focus on what each person did to confirm consent.
Common issues that may arise include:
Conflicting recollections of conversations or actions before sex
The impact of intoxication on perception and communication
Delayed or incomplete police investigations relying on text messages or social media
Complex consent questions in ongoing relationships
Given these challenges, early legal advice from the Best Brisbane criminal lawyer critical, especially before speaking to police.
What should I do if I am charged with rape in Qld?
If police contact you about an allegation of rape or sexual assault:
Do not speak to police or provide an interview without legal advice
Do not contact the complainant directly or indirectly
Preserve all evidence - texts, calls, photos, CCTV, or messages may be crucial
Contact an experienced criminal defence lawyer immediately
Frequently asked questions about affirmative consent in Queensland
When did the new affirmative consent laws start?
They took effect on 23 September 2024 for any sexual offence committed wholly after that date.
Does silence mean consent?
No. Under the new law, consent must be actively communicated through words or conduct.
Can intoxication affect consent?
Yes. A person so affected by alcohol or drugs that they cannot freely agree is incapable of consenting.
Can I rely on a mistaken belief that there was consent?
Only if you took reasonable steps to check consent. Simply assuming or guessing is not enough.
Is ‘stealthing’ now a criminal offence?
Yes. Removing, tampering with, or failing to use a condom without consent is expressly included as a circumstance where there is no consent.
Choosing the best rape lawyer Brisbane
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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