What to do if you are falsely accused of rape in Queensland – understanding consent laws
Many of our clients charged with rape in Queensland believed there was consent at the time. However, the law around consent is strict and has recently changed. Understanding how consent applies is critical in successfully defending a rape charge.
If you are facing serious charges, urgent legal advice is critical as the early steps can affect the outcome. Call (07) 3012 6531 or complete our Quick Enquiry form for a confidential discussion with our Brisbane criminal lawyers about the strategies for your case.
What is consent in rape charges?
In Queensland law, consent means free and voluntary agreement to sexual activity. Since 23 September 2024, amendments to the Criminal Code 1899 (Qld) make it clear that:
silence or inaction is not consent
consent must be communicated through clear and affirmative words or actions
consent can be withdrawn at any time
This means that a belief in consent must be reasonable, based on what the other person said or did, not simply on assumptions.
Often, our clients face a situation where a person later claims they did not consent, even though our client believed there was consent. In these circumstances, we focus on carefully analysing the evidence and identifying inconsistencies which may affect the complainant’s credibility or reliability.
Under section 349 of the Criminal Code 1899 (Qld), rape carries a maximum penalty of life imprisonment. The seriousness of the charge makes it critical to obtain legal advice as early as possible.
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.
What do the police have to prove for a rape charge in Queensland?
To convict, the prosecution must prove two things beyond reasonable doubt:
penetration occurred, and
it happened without the complainant’s free and voluntary consent.
Courts look at:
the complainant’s version of events given to police or in court
text messages, dating app conversations, or social media records
witness accounts from friends, housemates, or others present before or after the alleged incident
forensic evidence such as injuries and DNA
Defence strategies may include challenging inconsistencies, intoxication levels, or credibility.
What should I do if someone has falsely accused me of rape?
There are several possible defence strategies in rape cases under Queensland law. These include:
arguing that there is insufficient evidence to prove penetration beyond a reasonable doubt
establishing that the complainant gave free and voluntary consent
raising an honest and reasonable but mistaken belief in consent, based on what was said or done at the time
highlighting inconsistencies in the complainant’s account or identifying possible motives to lie
challenging the reliability of forensic or digital evidence
questioning whether police followed correct investigative or disclosure procedures
The right defence depends on the specific facts of the case, the available evidence, and how the prosecution presents its case. A strategic examination of the evidence by an experienced criminal defence lawyer is essential to determine which arguments are most likely to succeed in court. Call (07) 3012 6531 or complete our Quick Enquiry form for an urgent confidential discussion with our best criminal defence lawyers.
What is the penalty for rape in Qld?
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 charged with rape in Qld?
Being accused of rape does not mean you will be found guilty – the prosecution must prove the charge beyond reasonable doubt. However, early advice from an experienced rape lawyer is critical for the best outcome.
The following steps are critical if you have been charged or contacted by police:
do not speak to police without a lawyer present
do not contact the complainant or potential witnesses
keep any evidence such as text messages or social media conversations
call an experienced rape lawyer in Qld immediately for urgent advice
Will I go to jail if I am convicted of rape in Qld?
Rape is one of the most serious offences under Queensland law and the courts generally impose a term of imprisonment on conviction. The length of the sentence depends on many factors, including the circumstances of the offence, whether violence or threats were involved, the age of the complainant, and whether there are previous convictions. Sentences can range from several years to life imprisonment in the most serious cases.
However, the outcome is not the same in every matter. With thorough preparation, a criminal defence lawyer can make submissions to reduce the penalty.
This may include presenting:
character references
psychological or medical reports
evidence of rehabilitation efforts
circumstances that lessen culpability
an early guilty plea
cooperation with authorities
evidence of remorse
the absence of aggravating features
Strategic sentencing submissions can make a significant difference to the final outcome. If you are facing a rape charge, it is important to obtain legal advice early so your defence strategy and any mitigating material can be prepared well before your court date.
How do I choose the best rape lawyer in Brisbane?
When facing a rape allegation, you need a criminal defence lawyer with proven experience and a track record in successfully defending serious charges.
If you are facing serious charges, you need urgent legal advice. Call (07) 3012 6531 or complete our Quick Enquiry form for a confidential discussion with our Brisbane criminal lawyers about the strategies for your case.
Updated: 8 September 2025. Reviewed by Amy Soong, Legal Practice Director | Notary Public | Qld Law Society Member. 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.