New ‘affirmative consent’ laws – what it means for sexual offences moving forward

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As of 23 September 2024, critical changes to Queensland consent laws are now in effect. The reforms introduced by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 provide for an affirmative model of consent. This legislation significantly broadens the scope for prosecution of sexual offences, including rape, in Queensland. 

What is affirmative consent?

Affirmative consent requires each person engaging in a sexual activity to take steps to confirm the other person consents to the activity. Under this model, both verbal and non-verbal communication play a part in establishing consent and consent cannot be assumed.

This means that all parties involved in a sexual activity must actively express or show their consent, whether through words, actions, or body language. Silence or lack of resistance does not equate to consent. Consent cannot be assumed just because the other party did not say “no”. If it is not clear that someone is consenting, it is crucial to ask and make certain. 

The legislation also expands the non-exhaustive circumstances in which there is no consent, including where:

  • the person is so affected by alcohol or a drug as to be incapable of consenting or withdrawing consent;

  • the person is unconscious or asleep;

  • the person participates in the act because the person is overborne by the abuse of a relationship of authority, trust or dependence;

  • the person lies about having a serious disease, and subsequently transmits the serious disease to the other person. 

Do I need consent every time?

The law now makes it explicit that consent must be sought and obtained for every sexual act. This applies regardless of the nature of the relationship, whether it’s a long-term partnership or a casual encounter. Past consent does not guarantee future consent, and each interaction requires affirmative consent regardless of previous consent. Irrespective of whether you are in a committed relationship, consent must be renewed for every act, every time. Proceeding on the basis of assumptions about consent can lead to serious criminal accusations.  

New offence – ‘Stealthing’

The legislation also targets the act of ‘stealthing’, which is when a condom is removed or tampered with during sex without the other person’s knowledge or consent. Under the legislation, consent is not given where a person engages in a sexual activity with another person on the basis that a condom is used, and the other person does any of the following things before or during sex:

  • does not use a condom

  • tampers with the condom

  • removes the condom

  • becomes aware that the condom is no longer effective but continues with the act

Legal consequences

The new laws introducing affirmative consent pose significant legal implications for those accused of engaging in sexual activity without clear consent. Engaging in sexual acts without consent, as it is now defined in the Criminal Code 1899 (Qld), is illegal and may result in charges of sexual assault, or rape being brought.

The mistake of fact defence, which allows a person to argue they honestly and reasonably believed their partner consented, can no longer be relied upon if the individual did not say or do anything immediately before or at the time to check their partner was consenting to the sexual activity. However, this requirement will not apply if the person has a cognitive or mental health impairment that substantially prevented them from taking these steps.

These issues are complex and it is critical to obtain specific advice about your case with an experienced criminal lawyer. Contact our today for a no-obligation, confidential discussion.

All articles on our website are of a general nature and should not be relied upon as legal advice. The information contained within, is accurate at the time of publication. If you require further information, advice or assistance for your specific circumstances, please contact us.

What is ‘Upskirting’?

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In Queensland, it is an offence to observe or visually record the private (genital or anal) region of another in circumstances where they would expect to be afforded privacy. An example is using a mobile phone in a public place to take photos of women’s underwear under their skirt without consent.

Clients usually come to us extremely embarrassed, and there is often some media attention particularly if it arises in well-known shopping centres. As such, this type of charge requires extra sensitivity and reputational considerations.

In addition to the practical considerations, legal issues we look at include whether the prosecution can prove the element of ‘without consent’ beyond a reasonable doubt, as often the female in the photo or video may not be identifiable, nor might there be a statement from them.

Alternatively, there may be a complainant, but then a question arises as to what the photo or video actually depicts. This is because the definition to prove the charge is very specific. Often, the image may be blurry, not actually depict the region as defined, or the female may be wearing bike shorts, in which case it is not an offence.

Therefore, there is usually some scope for negotiations.

Bringing down the number of photos or videos is extremely important on any plea. This could mean the difference between penalties of a fine or imprisonment, or a conviction being recorded or not.

A methodical approach is key to a successful defence for a client. Contact our experienced Brisbane criminal lawyers for a no-obligation, confidential discussion.

All articles on our website are of a general nature and should not be relied upon as legal advice. The information contained within, is accurate at the time of publication. If you require further information, advice or assistance for your specific circumstances, please contact us.