Sexual Assault

Assault, in its simplest form, is an application of force to a person without their consent.[1] This includes most forms of unwelcome touching.


The offence of sexual assault is complete if the assault is both unlawful and indecent.[2] The word ‘indecent’ in this context means having a sexual connotation or done for sexual gratification.[3] All assaults are unlawful unless authorised, justified or excused by law.[4]


If there is consent to the touching, there is no assault. However, it is still an assault if the consent is obtained by fraud.[5] The Queensland Criminal Code does not define consent for this purpose.[6]


So, if the offender pretends to be the victim’s husband in order to obtain consent, any consent given is obtained by fraud. The offender is guilty of sexual assault. On the other hand, if a woman simply mistakenly believes a man is her partner and agrees to sexual contact, her consent is not obtained by fraud, and the man is not guilty of sexual assault.[7]


If a person is asleep, or 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.


The maximum penalty for sexual assault is 10 years imprisonment. It increases to 14 years if a mouth touches some genitals or an anus. The penalty increases further to a maximum of life imprisonment where the offender acts in company, is armed, or the vagina or anus of the person assaulted is penetrated.


A trial for sexual assault must be held before a jury in the District Court. Some pleas of guilty can be heard in the Magistrates Court, but only if the victim was more than 14 years old and there were no aggravating circumstances.[8]

[5] Section 245 Criminal Code 1899, “Fraud” in the context of s.245 and s.352 has been considered by the Court of Appeal as follows: “Conventional analyses of fraud postulate the existence of a dishonest misrepresentation…”; R v BAS [2005] QCA 97 at [90] per Fryberg J with whom Davies JA agreed.

[6] It is important to note that the definition of consent in Section 348 Criminal Code 1899 does not apply to an offence of sexual assault; R v BAS [2005] QCA 97 at [51] to [52] per Fryberg J with whom Davies JA agreed.

[7] R v BAS [2005] QCA 97 Obiter dicta at [90] and footnote [25] per Fryberg J with whom Davies JA agreed, distinguishing the position in relation to rape in R v Pryor [2001] QCA 341; (2001) 124 A Crim R 22