Affirmative Consent (Qld)

In 2024, Queensland introduced affirmative consent laws into its Criminal Code 1899. This page outlines those affirmative consent laws, and how they will affect criminal proceedings for sexual offences.

What is affirmative consent?

Affirmative consent is a model of sexual consent that requires consent to be communicated actively and on an ongoing basis.

Under an affirmative consent model, a person may be found guilty of a sexual offence if they did not take positive steps to ascertain whether there was consent to all aspects of the sexual activity.

Consent

Consent is defined in section 348 of the Criminal Code 1899 as free and voluntary agreement that may be withdrawn at any time.

A person is not taken to consent to an activity just because they do not physically resist, or because they have consented to the act on other occasions.  

This definition has not changed.

Circumstances where there is no consent

The Criminal Code 1899 also lists circumstances where a person is not to be taken to consent. These are:

• where they do not say or do anything to indicate consent
• where they do not have the capacity to consent
• where they are so affected by alcohol or a drug that they cannot consent or cannot withdraw their consent
• where they are asleep or unconscious
• where they participate because of force, fear of force, harm or fear of harm
• where they participate because of coercion, blackmail or intimidation
• where they participate because they are unlawfully detained
• where they participate because they are overborn by abuse of a relationship of trust, authority or dependence
• where they participate because of fraudulent representations about the nature of the act
• where they participate because they are mistaken about the other person’s identity
• where they participate because they are a sex worker because of a fraudulent representation that they will be paid
• where they participate on the basis that a condom will be used and a condom is not used or is removed or tampered with.

Mistake of fact defence

When a person is charged with a sexual offence based on a lack of consent, a defence is available if the accused had an honest and reasonable but mistaken belief that the complainant was consenting to the act. This defence is contained in section 348A of the Criminal Code 1899.

With the introduction of affirmative consent laws, this provision has been amended to specify that this defence cannot be relied on if the accused did not do or say anything immediately before the act to ascertain whether the other person consented.

Prior to this amendment, the mistake of fact defence was often criticised for allowing offenders to rely on irrelevant factors such as a person’s behaviour or style of dress when arguing that they believed that consent had been given.  

Responses to the laws

Affirmative consent laws have been welcomed by many who say that they are essential for correcting myths about sexual behaviour – such as that it is not necessary to seek consent every time sex is initiated with the same partner, or that a person can consent when they are drunk.

There have been calls for widespread public education campaigns to ensure that affirmative consent laws are understood. Police, lawyers and judges need to ensure the laws are applied currently to ensure that sexual assaults are prosecuted and heard properly.

Although concerns have been raised that the laws may inadvertently criminalize ‘spontaneous’ sex in long-term relationships, there is no evidence that this has occurred.

Other jurisdictions

Most Australian jurisdictions now have affirmative consent laws.

Tasmania was the first state to adopt affirmative consent laws in 2004, with New South Wales, Victoria and the ACT following.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.