Rape and Sexual Assault Charges in Queensland: What an Accused Person Needs to Know

If you are accused of rape or sexual assault in Queensland, the early stages of the investigation can affect the case outcome. Police may request an interview, arrange a recorded pretext call, obtain phone and social media material, speak with witnesses or collect medical and forensic evidence before deciding whether to charge.

Rape carries a maximum penalty of life imprisonment in Queensland. A charge is an allegation, and not a finding of guilt. Where a charge is contested, the prosecution must prove the offence beyond reasonable doubt.

Sexual offence law in Queensland also changed significantly on 23 September 2024, particularlyin relation to consent and mistake of fact. The date of the alleged conduct therefore matters when determining which law applies.

What is rape under Queensland law?

Section 349 of the Criminal Code 1899 (Qld) provides that a person commits rape if, without the other person’s consent, the person:

• engages in penile intercourse with the other person;
• penetrates the other person’s vulva, vagina or anus to any extent with an object or a part of the body other than a penis; or
• penetrates the other person’s mouth to any extent with a penis.

The maximum penalty is life imprisonment. A child under 12 is incapable of giving consent. A person charged with rape will first appear in the Magistrates Court, but the charge itself is dealt with on indictment in the District Court.

What is sexual assault in Queensland?

Sexual assault is an offence under section 352 of the Criminal Code 1899 (Qld). It includes unlawfully and indecently assaulting another person, or procuring another person, without their consent, to commit or witness an act of gross indecency.

The maximum penalty is ordinarily 10 years’ imprisonment. This increases to 14 years where the conduct involves contact between a person’s genitalia or anus and a person’s mouth. Life imprisonment applies where the offender is, or pretends to be, armed or is in company, and for particular forms of penetration. The Penalties and Sentences Act 1992 (Qld) also provides for a separate circumstance of aggravation. These are maximum penalties, not the sentence that will necessarily be imposed.

What changed with Queensland’s consent laws in 2024?

Queensland introduced an affirmative model of consent through the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, commencing on 23 September 2024.

Under section 348 of the Criminal Code, consent means free and voluntary agreement to the sexual act. Consent can be withdrawn at any time. A lack of physical or verbal resistance does not, by itself, amount to consent, and consent to one act does not necessarily mean consent to a different act, the same act on another occasion, or an act with another person.

Section 348AA sets out a non-exhaustive list of circumstances in which there is no consent. These include where a person:

• does not say or do anything to communicate consent;
• lacks the cognitive capacity to consent, is asleep or unconscious, or is so affected by alcohol or drugs that they cannot consent;
• participates because of force, harm or fear of either, including economic, reputational or psychological harm, or as part of an ongoing pattern of conduct;
• participates because of coercion, blackmail, intimidation, unlawful detention or the abuse of a relationship of authority, trust or dependence;
• is deceived about the nature or purpose of the act, or mistaken about the identity of the other person; or
• agreed on the basis that a condom would be used, and it was not used, was tampered with or removed.

Consent is therefore not determined simply by asking whether a person said ‘no’ or physically resisted. The court may need to consider what was communicated between the parties, the particular act, and whether consent continued throughout it.

What about an honest and reasonable mistake about consent?

An honest and reasonable mistake about consent may be relevant under section 24 of the Criminal Code, subject to section 348A. For offences committed wholly after 23 September 2024, a belief in consent is not reasonable if the accused did not, immediately before or at the time of the act, say or do anything to ascertain whether the other person consented to that act.

The accused’s voluntary intoxication cannot be taken into account. There is a limited exception where the accused proves, with expert evidence, that a cognitive or mental health impairment was a substantial cause of them not saying or doing anything to ascertain consent.

Mistake of fact and actual consent are related but distinct issues. Whether the defence is available requires close consideration of what was said or done between the parties and the version of the law that applies to the alleged offence.

How do Queensland police investigate rape and sexual assault allegations?

Police will usually obtain a detailed account from the complainant and then investigate evidence that may support, contradict or provide context for it. This may include messages, phone and social media data, CCTV and location evidence, photographs, medical or forensic evidence including DNA, and statements from people the complainant spoke to.

A message should not necessarily be considered in isolation. Its timing, the surrounding conversation and the relationship between the parties may all be important.

Pretext phone calls

Police may arrange for a complainant to call or message the person under investigation while the conversation is recorded, often before that person knows police are involved. The purpose may be to obtain an admission or other statement that can later be used as evidence.

If you unexpectedly receive a call or message about a sexual allegation, it is generally best not to discuss what is alleged to have happened and to simply end the call. Even saying ‘sorry’ could later be relied upon by police, depending on the context. Do not attempt to influence the complainant or any witness, or ask someone else to contact them on your behalf. Seek legal advice immediately.

Police interviews

You should obtain legal advice before deciding whether to participate in a police interview. A person suspected of an offence in Queensland generally has a right to remain silent, subject to particular statutory requirements to provide certain information. Police may already hold evidence they do not disclose before asking questions, and anything said voluntarily may become evidence.

What happens after a person is charged with rape?

A rape charge begins in the Magistrates Court, where bail may need to be dealt with immediately. Bail conditions may restrict contact with the complainant or require the accused to live at a particular address. The prosecution brief is then requested, which may take weeks or months. The matter will generally proceed through committal before being transferred to the District Court for trial or sentence.

How can rape and sexual assault charges be defended in Queensland?

The starting point is to identify precisely what the prosecution must prove and analyse the evidence on each disputed issue. Depending on the case, these may include:

• whether the alleged sexual act occurred;
• whether the complainant consented, or whether an honest and reasonable mistake about consent is available;
• identification of the accused;
• the reliability and credibility of the evidence, including differences between accounts given at different times;
• the context of messages and communications between the parties;
• medical, DNA or other forensic evidence; and
• whether particular prosecution evidence is admissible.

An inconsistency does not automatically make a witness unreliable, just as forensic evidence does not necessarily prove the prosecution case. Where digital evidence is central, it may be necessary to examine phone downloads, metadata and the full sequence of communications rather than selected screenshots.

After the evidence has been analysed, there may be a proper basis for a written submission to the prosecution seeking withdrawal, discontinuance or reduction of a charge, for example where an essential element cannot be established or admissibility issues arise.

What should I do if I am accused of rape or sexual assault?

1. Get legal advice before a police interview.
2. Do not contact the complainant about the allegation, directly or through another person.
3. Be cautious about unexpected calls and messages, as they may be recorded.
4. Preserve relevant evidence. Keep messages, photographs, social media material and location information. Do not delete or alter anything.
5. Identify evidence that may disappear. CCTV is often overwritten, so tell your lawyer promptly about potentially relevant material.

Can a rape or sexual assault charge be withdrawn?

After the prosecution evidence and any relevant defence material have been analysed, there may be a proper basis to make a written submission to the prosecution. This might arise because an essential element cannot be established, further evidence changes the prosecution case, admissibility issues arise, or the available evidence supports a different charge.

What other consequences can a sexual offence charge have?

Depending on the circumstances, a charge or conviction may affect reputation, employment, professional registration, blue card eligibility, immigration or travel, family arrangements and, for particular offences against children, reporting obligations. For people in regulated professions, the criminal case should be considered alongside any separate reporting or regulatory processes.

Frequently asked questions

Can I be charged with rape over something alleged to have happened many years ago?

Yes. Historical allegations can be prosecuted in Queensland. It is important to identify the law that applied at the time, and delay may affect what evidence remains available.

What happens if the complainant says they no longer want to proceed?

A complainant does not necessarily control whether a prosecution continues. Police or the prosecution may continue, although a change in the complainant’s position may be relevant to their assessment of the evidence. An accused person should never contact or pressure a complainant to withdraw.

Does Queensland’s affirmative consent law apply to my case?

It depends on when the alleged offence occurred. The current Chapter 32 consent provisions apply to an offence committed wholly after 23 September 2024. Where an alleged offence was committed wholly or partly before that date, the transitional provisions preserve the former law.

Should I get legal advice before I have been charged?

Yes. You do not need to wait until a charge has been laid.

Advice during the investigation stage can address whether you should participate in an interview, how to respond to police contact, what evidence should be preserved and what may happen if police decide to charge you.

Getting advice about a sexual offence investigation

Ashworth Lawyers is a Brisbane criminal defence firm that practises exclusively in criminal law and represents clients throughout Queensland charged with rape, sexual assault and other serious sexual offences.

Ashworth Lawyers is led by Legal Practice Director Amy Soong, a Queensland Law Society Accredited Specialist in Criminal Law. In the 2026 Doyle’s Guide rankings, Ashworth Lawyers is recognised as a Recommended Criminal Defence Law Firm in Queensland, and Amy Soong is individually recognised as a Recommended Criminal Defence Lawyer in Queensland.

Doyle’s Guide is an independent legal ranking publication, with its rankings based on peer review and feedback from lawyers and other legal professionals.

Ashworth Lawyers applies its Strategic Defence Framework to every matter it handles. The Framework is a minimum 22-step process that provides a methodical structure for assessing each case from every relevant angle. It is designed to ensure that the available legal, evidentiary, procedural and strategic issues are systematically identified, examined and considered when developing the defence strategy.

If you are looking for a rape lawyer in Brisbane, consider the lawyer’s experience in contested sexual offence matters and their approach to analysing the prosecution evidence. These cases can involve detailed questions about consent, communications, forensic evidence, disclosure and the law that applied at the time of the alleged conduct.

If police have contacted you about a rape or sexual assault allegation, legal advice can help you understand what you are required to do, what you are not required to do and the steps that should be considered before an interview or charge.

This article provides general information about Queensland law and is not legal advice. Legal advice should be obtained about your particular circumstances.