This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Rape and Other Sexual Offences Against Adults


Sexual offences in Queensland are governed by the Criminal Code Act 1899. They include rape, sexual assault and other offences. Most sexual offences against adults involve sexual acts that are non-consensual. The only sexual offence involving adults that does not involve a lack of consent is incest, which can be proven even if the act was consensual. The Criminal Code Act also contains sexual offences against children.

What is consent?

Consent is defined under section 348 of the Criminal Code as consent freely and voluntarily given by a person who has the cognitive capacity to give consent. A person does not validly consent if their consent was obtained:

  • By force;
  • Through threats or intimidation;
  • By threats or fear of bodily harm;
  • By exercise of authority;
  • By false and fraudulent representations about the sexual act;
  • By a mistaken belief that the accused was the victim’s sexual partner.

Rape

The most serious sexual offence against adults is the offence of rape, which is sometimes called sex without consent. Under section 349 rape is punishable by a maximum penalty of imprisonment for life. The act defines rape as:

  • Penetration with or of another person without the person’s consent;
  • Penetration of the vulva, vagina or anus of another person with a thing or a part of the accused’s body other than a penis without the other person’s consent;
  • Penetration of the mouth of a person by the accused’s penis without the other person’s consent.

Unlike other Australian jurisdictions, in Queensland rape does not include the continuation of sexual intercourse where the complainant has initially consented to sex but subsequently withdrawn their consent or where the accused realises that the complainant is not consenting after intercourse has started.

Sexual assault

Under section 352 of the Criminal Code it is an offence to:

  • Unlawfully and indecently assault another person; or
  • Procure another person to commit or to witness an act of gross indecency.

A sexual assault may consist of non-consensual sexual touching. It may also consist of unwanted sexualised speech, or a threat of unwanted sexual touching.

The maximum penalty for a sexual assault is 10 years imprisonment. A sexual assault is aggravated if it is committed while the offender is armed with a weapon or in company with a co-offender. Aggravated sexual assault carries a maximum penalty of imprisonment for life.

Indecent Acts

Under Section 227 of the criminal code, an indecent act is a criminal offence if it is done in a public place or with the intent to insult or offend a person. This offence is punishable by up to two years imprisonment. Indecent acts include a person exposing their genitals in public or performing a sexual act in public.

Incest

Under Section 222 of the Criminal Code it is an offence to have sex with a person’s child, parent, sibling, grandparent, uncle, aunt, niece or nephew. Incest is punishable by up to 10 years imprisonment and unlike other sexual offences against adults, is an offence regardless of the consent of the persona involved. 

Which court will hear your matter?

The sexual offences of rape, incest and aggravated sexual assault are serious indictable offences and are heard in the District Court.

Indecent act matters are heard in the Magistrates Court as are charges of sexual assault unless the defendant or the prosecution elects for the matter to be dealt with by the District Court.

Reforms to sexual offences against adults

Prior to 1970, the definition of rape was limited to the rape of a woman by a man using his penis. This definition was broadened due to widespread recognition that other physical acts could amount to rape and that men could also be the victims of rape. Some voices in the community have been critical of the broadening of rape to include penetration by fingers or objects, saying that this trivialises rape and that it is not appropriate for these other acts to be placed in the same category as traditional rape.

The offence of incest is also sometimes criticised as being anachronistic, with some arguing that it has no place in a liberal democracy and that sex between consenting adult siblings should be legalised. Others maintain that incest, even where it is consensual, is abusive and unhealthy and should therefore not be sanctioned by law.

If you require legal advice in a criminal matter or in any other legal matter, please contact Armstrong Legal.  

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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