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Sexual Offences Against Adults in Brisbane

Sexual offences against adults in Brisbane and the rest of Queensland are governed by the Criminal Code Act 1899. Sexual offences against adults include rape, sexual assault and other offences. Most sexual offences against adults involve acts that are non-consensual. The only sexual offence against an adult that does not require a lack of consent is incest, for which the consent of the participants in irrelevant. This article outlines the law surrounding rape and other sexual offences against adults in Brisbane and elsewhere in Queensland. 

What is consent?

Consent is defined in section 348 of the Act as consent that is freely and voluntarily given by someone who has the cognitive capacity to give consent. A person does not validly consent if they consent because of:

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

Rape

The most serious sexual offence against adults in Brisbane and Queensland is the offence of rape, which is sometimes known as sex without consent. Rape is governed by section 349 and is punishable by a maximum imprisonment for life. 

The act defines rape as:

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

Unlike other Australian jurisdictions, the definition of rape in Queensland does not include the situation where sexual intercourse commenced connsensually but the complainant withdrew their consent or where the accused realises that the complainant is not consenting after sexual intercourse has begun.

Sexual assault

While in some jurisdictions ‘rape’ and ‘sexual assault’ are synonymous, in Queensland they are two distinct offences. Sexual assault is defined in section 352 of the Act. The offence consists of:

  • unlawfully and indecently assaulting another person; or
  • procuring another person to commit or to witness an act of gross indecency.

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

The maximum penalty for a sexual assault in Queensland is 10 years imprisonment. A sexual assault is aggravated if it occurs while armed with a weapon or in company with one or more co-offenders. Aggravated sexual assault has a maximum penalty of imprisonment for life.

Indecent acts

An indecent act is a criminal offence under section 227 of the Act if it is done in a public place or with the intent of insulting or offending a person. Indecent acts are punishable by up to two years imprisonment and include exposing one’s genitals in public or performing a sexual act in public. 

Incest

Incest is an offence in Queensland regardless of whether or not the parties consent. Under Section 222, it is an offence to have sex with a person’s child, parent, grandparent, sibling, uncle, aunt, niece or nephew. Incest is punishable by 10 years imprisonment.

Jurisdiction

Rape, incest and aggravated sexual assault are serious indictable offences that can only be finalised in the District Court.

Indecent acts and sexual assaults are heard in the Magistrates Court or Children’s Court unless either party elects for the matter to be dealt with on indictment by the District Court.

Reforms to sexual offences against adults

Before 1970, rape was limited to the rape of a woman by a man using his penis. This definition was broadened due to growing recognition that other physical acts could amount to rape and that men could be the victims of rape too. However, some voices in the community have been critical of the broadening of rape to include offences involving penetration by fingers or objects, saying that this trivialises the offence and that it is inappropriate for these other acts to be in the same category as traditional rape.

Conversely, the offence of incest is sometimes criticised as anachronistic. Some people argue that there is no place in a liberal democracy for a sexual offence involving consenting adults and that incest between adult siblings should be legalised. Others maintain that incest, even where consensual, is abusive and unhealthy and should not be sanctioned by law.

If you require legal advice in relation to sexual offences against adults in Brisbane or in any other legal matter, please contact Go To Court Lawyers.  

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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