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Rape charges Queensland come under section 349 of the Criminal Code (Qld). The most common issue to determine in a rape case is whether the alleged victim consented. If there is consent, then there can be no rape. Whether or not an alleged victim consented may not always be so straightforward.


In some cases, a defendant may say it was not them. The case then doesn’t turn on whether the alleged victim gave their consent, but one about who did it.


So What Are Rape Charges Queensland?


Section 349 of the Criminal Code (Qld) says a person will rape another person if:


  • They have carnal knowledge with or of the other person without the other person’s consent or


  • They penetrate the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or


  • They penetrate the mouth of the other person to any extent with the person’s penis without the other person’s consent.


What Does “Consent” Mean For A Rape Charge In Queensland?


Section 348 of the Criminal Code (Qld) defines “consent”. This section says, “Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent”.


The alleged victim’s consent must have been given freely and voluntarily. The law says the consent will not be freely and voluntarily given if it was obtained:

  1. By force; or
  2. By a threat or intimidation, or
  3. By fear of bodily harm or
  4. By an exercise of authority or
  5. by false and fraudulent representations about the nature or purpose of the act; or
  6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.


If any of the above are applicable, the alleged victim will not have given their consent freely or voluntarily.


The alleged victim must have had the cognitive capacity to give consent.


Does The Alleged Victim Need To Say Or Do Anything To Show Consent Is Not Given?


The law (s348(3) Criminal Code (Qld)) says:

“A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.”


Can Consent Be Withdrawn?




The law says if consent is withdrawn by words or conduct and the act is done or continues, then the act is done or continues without consent. This means if the alleged victim agrees to sexual intercourse but part way through, indicates by words or some other way they no longer consents, then the consent is withdrawn. Suppose the defendant continues to have sexual intercourse. In that case, this is deemed to be without the alleged victim’s consent.



Can A Child Under 12 Years Of Age Give Consent?


No. The law says a child under 12 years of age cannot give consent.


What Is The Penalty For A Rape Charge In Queensland?


The maximum penalty for rape charges in Queensland is life imprisonment if you plead guilty or are found guilty. However, this doesn’t mean the Court will sentence you to life imprisonment. There are a lot of variables that come into play when a person is convicted of rape charges in Queensland. When a Court sentences a person for rape charges in Queensland, their lawyer will present the Court with precedent cases (previously decided by the Court) to help the sentencing Judge arrive at a penalty. Below are summaries of Queensland Court of Appeal decisions where persons were sentenced for rape charges in Queensland.


R v Ryan [2020] QCA 197


A jury convicted Mr. Ryan of 1 count of rape. Mr. Ryan lodged an appeal to the Queensland Court of Appeal based on the jury’s verdict being unreasonable. Mr. Ryan lost his appeal. Mr. Ryan was sentenced to 5.5 years imprisonment.


At trial, Mr. Ryan admitted he had sexual intercourse with the complainant but said she had consented to it.


The complainant was 20 years of age, had a two-year-old son and lived in a townhouse complex. The complainant invited Mr. Ryan and his wife to her place for drinks. The Ryans brought a friend, Mr. Cope, to the complainant’s home. Before the Ryans and Mr. Cope arrived at the complainant’s house, she had already been drinking and was feeling tipsy. The complainant consumed more alcohol in their company and felt very intoxicated, tired and sleepy and wanted to go to bed. The complainant fell onto the bed in her t-shirt and underwear, the last thing she remembered before falling asleep.


The next thing she remembered was feeling pressure on her backside and hands on the inside of her thigh. She was in a daze and was not awake but aware of what was happening. The next thing she felt was Mr. Ryan’s penis inside her vagina. While this happened, Mr. Ryan said, “You can’t tell anyone. This is our little secret”. At the time, she could not do anything but grunt in resistance. She remembers waking up alone in her room and feeling an intense throbbing pain in her vaginal area. She knew that something was wrong. She called her mother, who told her to get medical treatment.


After Mr. Ryan raped the complainant, he sent her text messages denying he had had sexual intercourse with her. Mr. Ryan’s semen was found in the complainant’s vulva, vagina and on the inside and outside of her underwear.


Mr. Ryan was 23 years of age at the time of the rape, and he was 25 years of age at the time of the trial. Mr. Ryan had no criminal history.


R v Clarke [2017] QCA 226


A jury convicted Mr. Clarke of 1 count of rape. Mr. Clarke appealed to the Court of Appeal. He appealed against his conviction. He also appealed against his sentence based on it being manifestly excessive.


For the offence of rape, Mr. Clarke was sentenced to 5 years imprisonment. He was also sentenced for three other crimes. The other offences were possession of child exploitation material, using a carriage service to solicit child exploitation material and using a carriage service to transmit indecent communication.


Mr. Clarke was 28 years of age.


Mr. Clarke and the complainant met on a dating website. They had engaged in consensual sexual intercourse. The complainant initiated another visit to Mr. Clarke’s house, during which they engaged in consensual sexual intercourse. Following this intercourse, Mr. Clarke started inserting his fingers in the complainant’s vagina. This hurt the complainant, so Mr. Clarke stopped and got some lubricant, which he put on his hands. Mr. Clarke started inserting his fingers again. The complainant asked Mr. Clarke to stop because it was painful, but he refused and drove his fist into the complainant’s vagina. The complainant sought medical treatment for multiple abrasions and bruising. The physical effects of the injuries were not long-term.


Mr. Clarke’s application for leave to appeal against his sentence was unsuccessful, and the five years imprisonment was upheld.


R v Smith [2022] QCA 55


Mr. Smith pleaded guilty and was sentenced for two counts of rape in the District Court. For one count, Mr. Smith was sentenced to 3 years imprisonment, and on the second count of rape, Mr. Smith was sentenced to 8 years imprisonment. No parole eligibility date was set for Mr. Smith, and he had 343 days of pre-sentence custody declared as time served under the sentence.


Mr. Smith appealed his sentence to the Court of Appeal because the sentence was manifestly excessive.


The two offences occurred on the same occasion.


Mr Smith was 37 years of age at the time of the offence, and the complainant was 21.


Mr. Smith had a criminal history that started when he was just over 17 years of age. Mr. Smith had been convicted of various offences, including violence, drugs and property-related offences. He had also been convicted of sexual assaults.


The complainant had caught a train to the Burpengary train station and arrived at about 12:20 a.m. The complainant was staying at a youth hostel across the road from the train station. The complainant had parked her car in the train station’s car park. The hostel closed its doors at 10:00 p.m., so the complainant slept inside her car. As the complainant walked towards her car, Mr. Smith asked her if she was okay. The complainant told him she was upset because she had to sleep in her car. Mr. Smith asked the complainant if she wanted to smoke a joint. Mr Smith directed the complainant to move her car near a kindergarten where he was standing. Mr Smith got inside the complainant’s car, and they smoked a joint. Mr Smith asked the complainant numerous times if she was intoxicated, and she said “no”. The complainant and Mr Smith exchanged phone numbers, and she asked Mr. Smith how she could get more cannabis. The complainant asked Mr. Smith if he was on any other drugs, and he told her ICE and that he had just sold his last bag of it.


Mr. Smith pushed his tongue inside the complainant’s mouth and held her head so she could not move. The complainant told Mr. Smith she didn’t want to do this. Mr. Smith pulled the complainant’s bra and singlet down over her left breast, tickled her nipple, and moved his tongue around her nipple for five to ten seconds. A short time later, Mr. Smith suggested they go on the bonnet. Mr. Smith pulled the complainant’s arm towards the bonnet of the car. Mr. Smith directed the complainant to lie on her back. Mr. Smith leaned over the top of her with a hand on either side of her body. Mr. Smith pulled the complainant’s shorts down, removed her underwear and told her to get on the ground. The complainant laid on her back on the ground and was naked.


Mr. Smith asked the complainant if she had ever done “doggy style”, and she said she didn’t know what it meant. Mr. Smith instructed the complainant to move onto her knees, which she did. Mr. Smith grabbed the complainant’s hips and forcedly rubbed his penis against her vaginal area. Mr. Smith told the complainant to lie on her back because he had a problem with his penis. Mr. Smith penetrated the complainant’s vagina with his finger and moved his finger in fast circles. When the complainant rolled onto her side, Mr. Smith moved her legs back to either side of his body. He continued to penetrate her vagina with his fingers. Mr. Smith didn’t stop when the complainant told him it hurt and asked him to stop. Mr. Smith touched his penis and inserted it into the complainant’s vagina He moved his hips back and forth multiple times. After Mr. Smith’s penis fell out of the complainant’s vagina, he again inserted his fingers. He switched between inserting his penis and his fingers a few times. The complainant repeated, “It hurt”. Mr. Smith stopped and asked the complainant to give him a “blow job”. The complainant told Mr. Smith she had never done it and didn’t want to. Mr. Smith stood up and told her he was finished.


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Criminal Lawyers Brisbane Group, The Rape Charge Queensland Experts


If you are facing a rape charge in Brisbane, Queensland, the best thing you can do is arm yourself with a criminal defence lawyer. But not any criminal lawyer. You want a Brisbane criminal lawyer whose primary practice is sexual offences. At the Criminal Lawyers Brisbane Group, we focus on crimes involving sex, drugs and, no, not rock and roll, but fraud.

You need the best Brisbane criminal lawyers if you want the best result. Contact the Criminal Lawyers Brisbane Group today for confidential expert advice regarding a rape charge. We represent clients throughout South-East Queensland. No matter where your rape charge is, our sex crime lawyers can help you.

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