Proposed changes to consent laws in Queensland

New legislation introduced to parliament aims to implement an affirmative model of consent in Queensland. 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, consent cannot be assumed. Current laws in Queensland do not require affirmative consent.

This could change if the proposed legislation is implemented. Under the proposed legislation, if a person does not say or do anything to communicate consent, consent is not given. The legislation 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

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

If implemented, the legislation will significantly broaden the scope for the prosecution of sexual offences in Queensland.