What is Rape & Affirmative Consent in Qld?
Introduction
Major changes to Queensland’s consent laws took effect on 23 September 2024. These reforms affect how rape and other sexual offence cases are prosecuted and defended in Qld. Rape carries a maximum penalty of life imprisonment under section 349 of the Criminal Code 1899 (Qld). Early legal advice is essential to protect your rights and build a strong defence.
Key facts
Law change – Affirmative consent now required under section 348A of the Criminal Code 1899 (Qld)
Effective date – 23 September 2024
Relevant offence – Rape (Criminal Code 1899 (Qld), s 349)
Maximum penalty – Life imprisonment
What has changed under Qld’s new consent laws?
Under the amended Criminal Code 1899 (Qld), section 348A now requires affirmative consent. This means:
You cannot rely on an ‘honest and reasonable mistake’ of belief in consent unless you said or did something to confirm consent.
Silence, passivity, or lack of resistance no longer imply consent.
Each person must do or say something to show mutual agreement to engage in each sexual act.
If you are accused of rape or a related offence and did not take 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, which is the non-consensual removal or tampering with a condom, has been criminalised.
If a person consents to sex with a condom, that consent does not extend to sex without one. Removing or interfering with a condom without the other person’s knowledge or agreement can amount to rape.
When is there no consent for sex in Qld?
Section 348AA of the Criminal Code 1899 (Qld) sets out examples where consent is legally not present, including where:
The person does not say or do anything to communicate consent
The person lacks cognitive capacity or is too intoxicated to consent
The person is asleep or unconscious
The person participates because of force, fear, coercion, or blackmail
The person is unlawfully detained
The person is overborne by authority, trust, or dependency
The person is misled about the nature or purpose of the act
The person is mistaken about identity or believes they are married to the other party
A sex worker is misled about payment
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Can consent be withdrawn?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 sexual activity, they can withdraw consent at any time. Saying ‘no’, showing discomfort, or ceasing participation may indicate withdrawal of consent. Any sexual activity must stop immediately. Continuing after withdrawal can result in criminal charges.
Why early advice is crucial
The new affirmative consent laws have narrowed the available defences to rape. You must be able to show you took active steps to ensure the other person consented.
If you are being investigated or charged with rape:
Do not contact the complainant
Do not speak to police without legal advice
Preserve messages or other evidence that may assist your defence
Contact our Brisbane criminal defence lawyers immediately
Our lawyers regularly appear in the Brisbane Magistrates and District Courts defending serious sexual offence cases. We have extensive experience preparing detailed submissions, negotiating with prosecutors, and identifying every possible defence to achieve the best outcome in your case.
Choosing the best rape lawyer in 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
