Rape & Attempted Rape

A person will usually be charged with rape if they penetrate the vagina, anus or mouth of another person without the other person’s consent.  The offence of rape is gender neutral. Both men and women can commit rape, or be victims of rape.

What is Rape

Section 349 of the Criminal Code indicates a person will be guilty of the crime of rape if they:

• Engage in penile intercourse with another person without the other person’s consent; or
• Penetrate the vulva, vagina or anus of another person to any extent with a thing or part of their body that is not a penis without the other person’s consent; or
• Penetrate the mouth of the other person to any extent with their penis without the other person’s consent.

Theoretically, none of the above examples of rape are more serious than the other and all examples of rape turn on the issue of whether the complainant has consented to the sexually penetrative act. 

Maximum Penalty

The maximum penalty for the charge of Rape is life imprisonment. 

Consent

 In 2024, the laws in Queensland around sexual offending changed to bring Queensland in line with other Australian states, under a new “affirmative consent” model.  This means that the consent a person receives from another to engage in a sexual act must be:

• Free and voluntary – where all parties want to engage in the sexual activity, and no one is forced, pressured, or intimidated to agree to partake 
• Specific and informed – parties should discuss and agree before any sexual activity what sexual acts they agree to part in on that specific occasion
• Ongoing and mutual – consent can be withdrawn at any time, and parties should keep checking in and respect a person’s decision if they no longer wish to participate in any particular sex act.
• From a person with capacity to consent –  all parties engaging in the sexual activity must have the capacity to communicate or withhold consent.  A person cannot consent to sexual activities with a person when they are unconscious or asleep, or if they are particularly vulnerable and do not have the cognitive or mental capacity to understand the nature of the sexual act, and to communicate their consent.  Importantly, for the purposes of a charge of rape, a child under the age of 16 years is incapable of giving consent under the law.

In Queensland, the legal definition of “consent” for a sexual offence means free and voluntary agreement and the following rules apply to consent given for sexual acts:

1. A person may withdraw consent to an act at any time.
2. A person who does not offer physical or verbal resistance to an act is not, by reason only of that fact, to be taken to consent to the act.
3. A person does not consent to an act just because they consented to—
   1. a different act with the same person; or
   2. the same act with the same person at a different time or place; or
   3.  the same act with a different person; or
   4. a different act with a different person.

The following acts constitute rape:

• Having penile intercourse with a person while they are unconscious or asleep 
• Continuing to have penetrative sex with a person after they ask you to stop, or after they have withdrawn their consent in some other way (even where they were initially consenting at the beginning of the sexual act)
• Putting your finger inside a person’s vagina or anus without their consent/when they are unconscious or asleep.
• Putting your penis inside another person’s mouth without their consent or when they are unconscious or asleep.
• Forcing someone to have sex with you under threat of harm.
• Engaging in consensual sex with someone, where consent was given on the basis a condom would be used, and then removing the condom and continuing sex without the express consent of your sexual partner to continue penetrative sex without a condom (commonly referred to as ‘Stealthing’).

What Must Be Proven?

For a person to be found guilty of rape the Prosecution must prove each of the following elements:

1. That there was an act of physical penetration by the accused person; 
2. Of the complainant; and 
3. The act of penetration occurred without the Complainant’s consent.

If the Prosecution is unable to prove each of the above elements to the relevant standard (beyond a reasonable doubt) the person should be found not guilty of the offence.

ATTEMPTED RAPE

If a person attempts, by some overt act, to rape another person, but is interrupted or is unable to complete the act of rape for some other reason, they can be charged with the offence of Attempt to commit rape.

Under s350 of the Criminal Code, any person who attempts to commit the offence of rape is guilty of a crime and is liable to a maximum penalty of 14 years’ imprisonment.

What must be proven for an attempted rape charge?

For a person to be found guilty of the offence of Attempt to commit rape, the Prosecution must prove each of the following matters beyond a reasonable doubt that the accused:

• intended to commit rape; and
• commenced executing that intention into action; and
• performed some overt act by which that intention was manifested

Which Court Will Hear the Matter?

In some cases, an accused person can have their charge of rape finalised in the Magistrates Court of Queensland. This is only possible if all of the following apply:

•  they do not elect to have a trial by Jury in the District Court
•  they are pleading guilty
•  the complainant (or victim) was 14 years or older at the time of the offence
•  they are not charged with a circumstance of aggravation; and
• The Magistrates’ Court does not abstain from jurisdiction (this can occur if the Court believes the person cannot be adequately punished in the Magistrates Court because the person is likely to be sentenced to more than 3 years’ imprisonment which is the Magistrates Court’s jurisdictional limit for terms of imprisonment).

In all other cases, because of the nature and seriousness of the charge of rape, the matter must proceed on indictment and be finalised before the District Court of Queensland.

Maximum Penalties:  Rape simpliciter v Aggravated Rape

In Court you will often hear charges without circumstances of aggravation referred to as “simpliciter” offences, and charges with circumstances of aggravation referred to as “aggravated” offences. 

The charge Rape is an offence which will attract a heavier sentence where it is charged with a circumstance of aggravation.  Where a circumstance of aggravation is averred by prosecutions as part of the allegations of the charge, the charge becomes an “aggravated” rape charge. 

Under the s 161Q of the Penalties and Sentences Act, it is a circumstance of aggravation to the charge of rape, if, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender: 

• Was a participant in a criminal organisation; and 
• They knew or ought reasonably to have known the rape was being committed
  • at the direction of the criminal organisation or one of its participants, or
  • in association with 1 or more persons who were participants of the criminal organisation at the time the rape was committee; or
  • for the direct or indirect benefit of a criminal organisation 

The above circumstance of aggravation was introduced some years ago to specifically target and more substantially punish the illegal conduct of motorcycle gangs and other criminal organisations. The impact of this circumstance of aggravation is that, if convicted of this offence with this circumstance of aggravation, the Court must impose a base component (sentence of imprisonment imposed under the law) and a mandatory 7 years’ imprisonment, to be served cumulatively (or on top of) the base component. This additional 7 years must be served wholly in a corrective services facility.

Possible Defences to a Charge of Rape

The following defences may be available to a person charged with rape, depending on the facts and circumstances of their particular case: 

1. Consent was given to the accused by the complainant prior to the alleged act
2. The person charged held an honest and reasonable but mistaken belief that the complainant was consenting to the penetrative sexual act (Mistake of fact – Section 24 of the Criminal Code))
3. The person charged had a mental illness which deprived them of their capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not do the act. (Insanity/ Unsoundness of mind – Section 27 of the Criminal Code); and
4. The person charged was involuntarily intoxicated (for example they were drugged by another)  and their level of intoxication at the time of the alleged offence was to such an extent that they did not have the capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not do the penetrative sexual act (Non-voluntary Intoxication – Section 28 Criminal Code)

Common Questions about the Offence of Rape

Will the jury take into account that I was drunk when the event occurred when considering whether I am guilty of this offence?

In some cases, a jury is entitled to take into account your intoxication when determining whether they believe you held an honest belief that the complainant was consenting.  However, since the amendments in 2024, a jury cannot have regard to your voluntary intoxication when deciding whether your belief as to the complainant’s consent was reasonable.  In short, voluntary intoxication is not, in and of itself, a defence to the charge and the fact that you were intoxicated cannot turn what would otherwise be an unreasonable belief into a reasonable one.  

Are the media allowed to publish my name and picture and details about my charge of Rape, even if I haven’t yet been found guilty? Can I do anything about this?

Yes. Anyone charged with rape, attempted rape, assault with intent to commit rape, or sexual assault may be named in any form of media coverage (including print, online, or television) at any stage of legal proceedings in Queensland.  

In some cases, a person charged with one of these offences can apply to the Court for a non-publication order (also known as a ‘suppression order’). 

The Court will only make such an order if one of the following three grounds is met:

1. The order is necessary to prevent prejudice to the proper administration of justice; or
2. The order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge; or
3. The order is necessary to protect the safety of any person.

There are numerous considerations for a Court hearing such an application, but the principle of ‘open justice’ (which dictates that judicial proceedings should occur in open Court, publicly and in open view, and with no restriction on reporting) is usually of paramount consideration.  These applications can be complex and can actually draw media attention in circumstances where they may not have been aware or interested in your matter before. If you are needing assistance with one of these applications, you should get legal advice.

What if the sex was consensual, but I removed the condom during sex without telling the complainant or asking for their consent to continue without the condom?

Nonconsensual removal of a condom during sex is referred to as ‘Stealthing’ and is a type of rape under Queensland law.  Since the amendments in 2024, at law, there is no consent if you participate in a sexual activity with another person on the basis that a condom is used and then you:

• Don’t use a condom
• Tamper with the condom
• Remove the condom; and/or
• Become aware the condom has broken/ no longer effective but continue on with the sexual act.  

Will I go to Gaol or have a criminal record if I am convicted of this offence?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Rape is a very serious criminal charge (as evidenced by the maximum penalty of life imprisonment). If a person pleads guilty to this offence, or is found guilty after a trial, the Court will consider sentencing the person to a period of actual imprisonment, even if they have never been in trouble before.   In Queensland:- 

• If a person is convicted of an offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment unless there are exceptional circumstances; and
• Any time the Court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the Court must record a conviction. This means the offence will appear on the person’s Court outcomes, and the person will have recorded criminal history.
• The offences of Rape and Attempt to commit Rape are both  ‘serious violent’ offences and ‘qualifying’ offences under the Penalties and Sentences Act in Queensland. This means if you are convicted of this offence and sentenced for it, the Court can, in some instances:
  • Make a serious violent offender declaration as a part of your sentence, requiring you to serve 80% of your sentence (or 15 years, whichever is less) in actual custody before being eligible to apply for parole; or
  • Impose an indefinite sentence instead of imposing a fixed term of imprisonment.

The consequences of a conviction being recorded for any type of offence can be serious if you have a job or type of employment where you need to have no prior criminal convictions.  It may also jeopardise your employment and/or make it difficult to obtain visas for overseas travel.  A conviction for an offence of a sexual nature can completely rule out certain career paths, particularly those vocations which require a blue card, where you are working with children, or other vulnerable communities. If you are convicted of an offence of this nature, you can expect to have your blue-card taken away from you. 

What should I do if I am contacted by Police about a charge of Rape?

If you are contacted by Police and they want to talk to you about a charge of rape it is imperative you receive good legal advice at the earliest opportunity and before speaking with Police or anyone else about the matter.  Armstrong Legal provides expert legal advice and representation for offences of this nature.

Contact Armstrong Legal now to arrange an obligation free consultation.