Sexual Offences

Accusations of sexual crime are among the gravest of all. People convicted of sex crimes are shunned from respectable society and demonised in the media. Often the accusation is made without supporting evidence. At trial, the battle is often between the word of one and the word of the other. Prison sentences usually follow conviction.

The age of consent for sexual activity in Queensland is generally 16.[1] However anal intercourse is illegal below the age of 18.[2] It is also illegal, under federal law, to distribute sexually explicit images of people below the age of 18.[3] This leads to the absurd result that it is perfectly legal for a couple of 17 year olds to have sexual intercourse, but they break the law if they send each other photographs of themselves naked.

An accused person may have been mistaken about the age of their sexual partner. If so, the accused person at trial will usually have to prove that they believed the other party was of age, and also that they had reasonable grounds for that belief.[4] It is not possible to claim mistake if the other party was less than 12 years of age.[5]

Consent is a common issue in trials of sex crimes. The Queensland Criminal Code defines consent in rape cases (but not in sexual assault cases) as follows:[6]

(1)    … consent means consent freely and voluntarily given by a person with the cognitive capacity to give consent.

(2)    Without limiting sub-section (1), a person’s consent to an act is not freely and voluntarily given if it is obtained:

(a)    by force; or,

(b)   by threat or intimidation; or,

(c)    by fear of bodily harm; or,

(d)   by exercise of authority; or,

(e)   by false and fraudulent representations about the nature or purpose of the act; or,

(f)     by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

If a person is too drunk to realise what they are doing, then they cannot legally consent. Any sexual conduct with such a person is likely to be an offence.

Some of the sexual crimes most frequently charged in Queensland are:

Sexual Assault;

Rape;

Indecent Dealing (Treatment) with a Child under 16;

Maintaining a Sexual Relationship with a Child;

Indecent Act;

Procuring a Child for an Immoral Purpose; and

Possession of Child Exploitation Material.



[3] Section 473.1 definitions of “child abuse material” and “child pornography material” and e.g. section 474.19 Criminal Code 1995 (Cth)

[4] For example, section 208(3)section 210(5), section 215(5), section 219(5) Criminal Code 1899 . The standard of proof required is on the balance of probabilities.