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What Does the Law Say About Consent and Sexual Assault?

Any sexual activity without agreement between all parties is unlawful in Australia.

Any sexual activity without agreement between all parties is unlawful in Australia. Recently in Queensland, there has been growing support to drastically change consent laws and offer more clarity as to what is considered consent and what is not. In March 2021, Queensland saw new laws introduced in the Criminal Code Act regarding silence and consent, withdrawing consent and intoxication as a defence. So what does the current and new law say about consent and sexual assault.


What is Consent?

First of all, it is important to understand what exactly is consent. Section 348 of the Criminal Code Act defines consent as “consent freely and voluntarily given by a person with the cognitive capacity to give the consent”. It is not considered consent if the consent was obtained by force, threat or intimidation, fear of bodily harm, exercise of authority, false and fraudulent representations about the sexual act, and a mistaken belief that the accused was the person’s sexual partner.

Sexual activity without consent is considered a sexual offence, such as rape and sexual assault.


Sexual Assault

Sexual offences without consent like rape and sexual assault are governed by the Criminal Code Act 1899.

Sexual assault involves any person who;

(a) unlawfully and indecently assaults another person; or
(b) procures another person, without the person’s consent—

(i) to commit an act of gross indecency; or
(ii) to witness an act of gross indecency by the person or any other person;

For example, if a person touches another person’s buttocks without consent, they would be charged with sexual assault. Even if the offender does not touch the other person, rather they force the other person to witness a sexual act without their consent, this is also classed as sexual assault. A person found guilty of sexual assault may serve a prison sentence of 10 years.

The most serious offence a person can be charged with when it comes to no consent and sexual assault is rape. Under section 349, a person rapes another person if:

(a) the person has carnal knowledge with or of the other person without the other person’s consent; or
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

The penalty for rape in Queensland is life imprisonment.


Below the Age of Consent

Age of Consent Laws are in place in order to protect young people from sexual exploitation and abuse.

While the consensual age varies across each state in Australia, the legal age for consent in Queensland is 16. It is therefore unlawful to have carnal knowledge (sexual penetration of any kind) of a child under 16, as they cannot legally give consent. Even if the child does give a verbal consent, you cannot use this as a defence; this is because the law has determined that children and young people below this age have not yet reached a level of general maturity which enables them to safely participate in sexual activities.

Section 215 of the Criminal Code Act also states that sexual acts with children under the age of 12 carry a maximum penalty of life imprisonment.


New Legislation in Queensland

In March 2021, new laws passed through Queensland Parliament regarding consent, designed to provide clarity for judges and better outcomes for victims.

It can no longer be assumed that a person is giving consent if they do not verbally reject the act before or at the time the act was done. Consent can also be withdrawn by words or actions once a sexual act has begun. In addition, a person accused of rape can no longer use self-intoxication as a ‘mistake of fact’ defence and assuming the victims were consenting.

While these new laws seem to be taking a step forward in ending violence against women, many advocates and survivors have warned the Queensland Government that these amendments do go not go far enough to protect women.


Legal Advice Regarding Consent and Sexual Assault in Queensland

If you would like to receive legal advice regarding consent and sexual assault, or, you have been charged with sexual assault and require legal representation, please reach out to our team of expert criminal lawyers. At Guest Lawyers, we are experienced dealing with sex offences, as well as other criminal offences, and we offer initial consultations (including in prisons). Please get in touch with us either via email or by calling (07) 3211 3007.