Sexual Offences
Accusations of sexual crime are among the gravest of all. People convicted of sex crimes – rape, sexual assault, indecent dealing, child abuse material – are shunned from respectable society and demonised in the media. Often the accusation is made without supporting evidence.
At a trial, the battle is often between the word of one and the word of the other.
If found guilty, offenders are usually sent to prison.
The age of consent for sexual activity in Queensland is generally 16.[1] But, under federal law, it is illegal to distribute sexually explicit images of people below the age of 18.[2] This leads to the absurd result that it is perfectly legal for a young couple, both 17 years old, to have sexual intercourse, but they break the law if they send each other photographs of themselves naked.
People can be 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 person was old enough, and also that they had reasonable grounds for that belief.[3] It is not possible to claim mistake if the other person was less than 12 years of age.[4]
Many trials of sex crimes in Queensland turn on the question of consent. The legal meaning of consent changed on 23 September 2024 [4].
Consent in Queensland now means: “free and voluntary agreement” [5]
There is a long list of things which will mean there is no legal consent.
The most radical change to the previous law is this: It is not legal consent if the person agrees because of fear of harm of any type. The fear may not have been caused by anyone involved in the sexual activity. It might for example be fear of losing a relationship, a job, or a visa. [6]
In any relationship where there has been previous domestic violence, any sexual activity now risks being charged as rape or sexual assault.
Other circumstances in which there is no consent include (click on a link for more detail):
- too drunk or stoned to be able to (legally) give consent;
- asleep or unconscious;
- did not do or say anything to communicate consent;
- the consent is withdrawn (which it can be, at any time);
- overborne by the abuse of a relationship of authority, trust or dependence;
- mistake about identity;
- condom not worn or removed despite agreement – “stealthing”; or,
- lack of cognitive capacity.
If you are accused of a sexual crime you are in a position of great risk. You need a lawyer. At even the hint of an investigation, you should immediately seek legal advice from a solicitor. This is one of the times engaging a lawyer can make a significant difference for you, and the outcome of the case.
Call Ken Mackenzie or Anne Connell at Mackenzie Mitchell Solicitors on (07) 3236 1202 (24 hour emergency number)
Some of the sexual crimes most frequently charged in Queensland are:
Sexual Assault
Rape
Indecent Dealing – Indecent Treatment – with a Child under 16
Maintaining a Sexual Relationship with a Child
Indecent Act
Procuring a Child for an Immoral Purpose
Possessing Child Exploitation Material
Possessing Child Abuse Object
Repeated Sexual Conduct with a Child
[1] For example, section 215 Criminal Code 1899
[2]Section 473.1 definition of “child abuse material” Criminal Code 1995 (Cth)
[3]For example, section 210(5), section 215(5), section 219(4) Criminal Code 1899 . The standard of proof required is on the balance of probabilities; R v Cole [1994] NTCCA 129; (1994) 77 A Crim R 91
[4] Section 13 Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 – commenced 23 September 2024, except for paragraph (1)(m) of section 348AA. The new definition of consent will apply to offences alleged to have been committed on or after 23 September 2024. The older, previous law, will apply if the offence is alleged to have occurred before that date.
[4]For example section 210(5) Criminal Code 1899
[5] Section 348 Criminal Code 1899
[6] 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