Facing charges of rape or sexual assault in Qld?

Under section 349 Criminal Code 1899 (Qld), a person commits rape if sexual penetration occurs without consent. This includes:

• Penile intercourse without consent

• Penetration of the vulva, vagina, or anus with any part of the body or an object without consent

• Oral penetration of a person’s mouth with a penis without consent

Therefore, rape covers a range of non-consensual penetration, and not just penile intercourse.

No. Rape must occur without consent. In most of our cases, consent is one of the main issues because the complainant is denying that they consented. Strategies to defend a case in this situation include a detailed examination of the circumstances, such as:

• Is there a reason why the complainant is now saying there was no consent? For example, did the complainant regret having sexual intercourse the next day? Did the complainant’s partner later find out?

• The actions after the intercourse? For example, were there friendly messages the following days? Were there still social outings or other friendly meetings after the alleged rape?

• Does the complainant have credibility issues? For example, have they made similar complaints against other persons? Do they have a history of mental health concerns?

Consent must be free and voluntary, and a person can withdraw consent at any time. As of 23 September 2024, Qld introduced the idea of ‘affirmative consent’. This requires each person to actively confirm they agree to the sexual activity, either through words or clear actions. Silence, lack of resistance, or failing to say ‘no’ is not consent. It must be actively communicated.

Also, just because a person consents to a sexual act, does not mean they consent to another. This means, if a person consents to vaginal intercourse, it does not mean they consent to anal intercourse. Also, consent at another time or place, does not mean consent at this time or place.

In Queensland, rape carries a maximum penalty of life imprisonment. The sentence can vary greatly depending on the circumstances of the case. Outcomes range from non-custodial options, such as a wholly suspended sentence or immediate release on parole, through to lengthy prison terms. A conviction is almost always recorded and can have lasting consequences for employment and reputation.

Because of these risks, it is important to obtain advice from an experienced rape lawyer in Brisbane as early as possible. In some cases, it may be possible to negotiate with the prosecution to have a charge discontinued or reduced to sexual assault, which can carry much lesser penalties including fines and no conviction recorded.

An evidence gathering technique commonly used by police officers in these types of cases, is a ‘pre-text telephone call’.

This involves the complainant calling you with an aim to extract an admission. The call will be recorded by the police and can be used as evidence in court.

Therefore, it is important to seek advice early, even if you have not yet been charged by the police. If you expect that a complaint has been made, or will soon be made, it is important to call us now.

It is not uncommon for complaints of a sexual nature to be made months or even years after the alleged incident. There is no time limit on when police can bring these charges.

Defending historical allegations requires particular care, as the passage of time can make it harder to locate witnesses, test memories, or examine physical evidence. Our Brisbane criminal defence lawyers have considerable experience in these cases and have achieved not guilty verdicts at trial in a range of matters.

In most of our rape cases, the strategy either includes the prosecution unable to prove that sexual intercourse occurred, or that they cannot prove that it was non-consensual. For some cases, we have also successfully negotiated discontinuance, reduction of the charge, or mediation.