Sexual Intimacy in a Domestically Violent Relationship
If you’re in a relationship where there has been domestic violence at any time in the past, any physical intimacy in Queensland now comes with increased legal risk.
The law changed on 23 September 2024.
There is no consent to sexual activity if the person agrees because of fear of harm of any type.[1]
The fear may not have been caused by anyone involved in the activity. For example, it could be fear of losing a relationship, a job, or a visa.
It does not matter when the behaviour happened to cause the fear.
Examples of harm (in the legislation) include —
•economic or financial harm
•reputational harm
•harm to the person’s family, cultural or community relationships
•harm to the person’s employment
•domestic violence involving psychological abuse or harm to mental health
Some protection comes from the law about an honest and reasonable belief that your partner is consenting.[2]
But if you know that 2 years ago, after they said no, there was a huge argument about everything and you punched a wall – can your belief in their consent now be reasonable? After all, it has to be more than a belief in their agreement – more than a yes. It must be a belief in a free, voluntary yes – belief in a consent as consent is defined by the law. So, if you know your partner is sometimes intimidated by your behaviour, is it ever reasonable to believe their consent is not affected by fear?
And what if there’s a record? Text messages. Emails. You’re on notice of the fear of harm. “Please don’t leave me. I’ll do what you asked. I’ll please you every morning. Divorce is a disgrace in my culture. My parents will cut me off.” After hearing that, it’s hard to have a reasonable belief in a consent free from fear of harm.
By this definition of consent, many long term relationships will be transformed into a course of sustained criminal conduct – every act of intimacy a sexual assault or rape. At least one person in the couple, and sometimes even both, will be criminals.
Narratives too, change with time and perspective. People who at the time vigorously asserted their autonomy, consent, and happiness will sometimes look back on a relationship with acrimony. They may come to emphasise other reasons for why they stayed in it – including fears of harm.[3]
[1] Section 348AA Criminal Code 1899 -“(1) Circumstances in which a person does not consent to an act include the following– …(f)the person participates in the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal or property, regardless of— (i)when the force, harm or conduct giving rise to the fear occurs; or (ii)whether it is, or is a result of, a single incident or is part of an ongoing pattern; Examples of harm— •economic or financial harm •reputational harm •harm to the person’s family, cultural or community relationships •harm to the person’s employment •domestic violence involving psychological abuse or harm to mental health •sexual harassment
[2] Section 24 Criminal Code 1899 – Mistake of fact
(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
Section 348ACriminal Code 1899 – Mistake of fact in relation to consent
(1)This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person consented to the act.
(2)In deciding whether a belief of the person was honest and reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.
(3)A belief by the person that another person consented to an act is not reasonable if the person did not, immediately before or at the time of the act, say or do anything to ascertain whether the other person consented to the act.
(4)Subsection (3) does not apply if the person proves that—
(a)the person had at the time of the act—
(i)a cognitive impairment within the meaning of section 348B; or
(ii)a mental health impairment within the meaning of section 348C; and
(b)the impairment was a substantial cause of the person not saying or doing anything.
(5)The person bears the burden of proving the matters mentioned in subsection (4).
(6)Evidence adduced by the person of the matters mentioned in subsection (4) must include evidence given by a person qualified to give expert evidence on the matters.
[3] For example, former wives and girlfriends of Hugh Hefner’s gushed publicly about their lifestyles while they lived in the Playboy Mansion, but now characterise it as abusive.
“I am so grateful. He gave me life. He gave me direction. He taught me kindness. I will feel eternally grateful to have been by his side, holding his hand, and telling him how much I love him. He changed my life, he saved my life. He made me feel loved every single day. He was a beacon to the world, a force unlike anything else…”
“It was very traumatic,” … “It was emotionally abusive. It was very restrictive. I didn’t realize how bad it was until I was away from it for a while.”