Sexual offences against adults in Queensland are governed by the Criminal Code Act 1899. The majority of sexual offences against adults involve sexual acts without consent. The only sexual offence involving adults that does not require an absence of consent is the offence of incest, which can be proven even if the sexual contact was consensual. The Criminal Code Act also contains a number of sexual offences against children.
What is consent?
Section 348 of the Criminal Code defines consent as consent freely and voluntarily given by a person with cognitive capacity to give consent. A person is taken not to have consented if their consent was obtained:
- By force;
- By threat or intimidation;
- By 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 person’s sexual partner.
The most serious of all sexual offences against adults is the offence of rape, which is also known as sex without consent. Section 349 makes rape an offence punishable by a maximum penalty of imprisonment for life. Rape is defined as:
- Penetration with or of another person without that person’s consent;
- Penetration of the vulva, vagina or anus of another person with a thing or a part of the person’s body other than a penis without the other person’s consent;
- Penetration of the mouth of another person by the person’s penis without the other person’s consent.
Unlike other states and territories, the Queensland definition of rape does not include the continuation of sexual intercourse ie where the complainant initially consents to sex but subsequently withdraws consent or where the accused becomes aware that the complainant does not consent after intercourse has commenced.
Section 352 of the Criminal Code makes it an offence to:
- Unlawfully and indecently assault another person; or
- Procure another person to commit an act of gross indecency or to witness an act of gross indecency
A sexual assault may consist of non-consensual sexual touching and in some cases by the use of unwanted sexualised speech, or a threat of unwanted sexual contact, towards another person.
The maximum penalty for a sexual assault is imprisonment for 10 years. A sexual assault is an aggravated sexual assault if it is committed while armed with a weapon or in company with a co-offender. Aggravated sexual assaults carry a maximum penalty of imprisonment for life.
Under Section 227 of the criminal code, it is an offence to do an indecent act in a public place or in any place with intent to insult or offend a person. This offence is punishable by a maximum of two years imprisonment. Indecent acts include a person exposing their genitals in public or performing a sexual act in public.
Section 222 of the Criminal Code makes it an offence to have carnal knowledge with or of a person’s child, parent, sibling, grandparent, uncle, aunt, niece or nephew. This offence is punishable by a maximum of 10 years imprisonment and unlike other sexual offences against adults, is an offence regardless of whether or not the other person consented to the act.
Which court will hear your matter?
Charges of rape, incest and aggravated sexual assault are serious indictable offences and are heard in the District Court.
Charges of indecent acts are heard in the Magistrates Court as are charges of sexual assault, unless the defendant elects for the matter to be heard in the District Court.
Reforms to sexual offences against adults
Prior to the 1970, the definition of rape was limited to the rape of a woman by a man where the sexual penetration was by a penis. This definition was broadened in response to widespread recognition that other physical acts could amount to rape and that men could also be rape victims. Some voices in the community have criticised the broadening of the definition of rape to include penetration by fingers and objects, saying that this trivialises the offence and that it is not appropriate.
The offence of incest, which is the only sexual offence involving adults that does not require the contact to have been non-consensual, is sometimes criticised as being anachronistic. Some argue that such an offence has no place in a liberal democracy and that incest between adult siblings should be legalised. Others maintain that incest, even between consenting adults, is abusive and unhealthy and therefore should not be sanctioned by law.
If you require legal advice in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.