On 23 September 2024, new affirmative consent laws came into force in Queensland. The amendments followed a 2020 report by the Queensland Law Reform Commission (QLRC), titled Review of Consent Laws and the Excuse of Mistake of Fact (although the Government rejected most of the QLRC’s advice). Here’s what the amendments mean for you.
Old Definition of ‘Consent’
Under the old law, consent was a state of mind: a free and voluntary state of mind by someone with full cognitive capacity (e.g. not drunk or asleep). Consent was not present if obtained by (for instance) force, fear, threat, authority, or lies about the nature of the sexual act. Consent could be withdrawn, and silence or lack of resistance did not of itself constitute consent.
However, in the context of long-term relationships, there was an understanding that consent might be communicated in subtle and nuanced ways, or that consent could be presumed based on patterns of past conduct (although of course, a person could explicitly withdraw consent at any time, at which point patterns of past conduct would become irrelevant).
Moreover, if a person assumed (based on past conduct) that a person was consenting, but they were in fact not consenting, then the defence of mistake of fact would apply until such time as the other person indicated that they were not consenting. Whether mistake of fact was applicable would depend on whether the person’s belief that consent had been obtained was honest and reasonable when looking at the situation in its entirety, including anything said or done by the other person.
The New Definition
Under the new laws, most of this remains the same, but there are a few crucial changes:
- Consent is no longer a state of mind: it is a positive agreement. It must be actively communicated beforehand or at the time of the act in question. Regardless of whether a person ‘actually’ consents, the law now considers that consent is not present if a person does not say or do anything to communicate consent.
- The past relationship, and patterns of past conduct, are now irrelevant. Consent must be explicitly communicated for each act every time
- The doctrine of mistake of fact cannot apply unless the person did something beforehand to try to ascertain whether consent was present.
This means that even if you’re in a long-standing marriage where you have learnt to know what the other person wants, you can now be prosecuted for rape if you engage in consensual sexual activity if the other person doesn’t explicitly do or say anything to indicate consent.
In general, couples who have a healthy relationship will not fall foul of this problem because the police will not know. But it’s important to know that if a breakup or divorce occurs, the other person would be able to report a rape and it may be prosecuted.
Applicability
One little-known aspect of the new laws is that they do not apply to sexual assault offences; only to rape. That’s right; despite what the media have been saying, affirmative consent does not apply to most sexual assaults.
This is because:
- The new definition of consent only applies to Chapter 32 of the Criminal Code which deals with rape and sexual assaults.
- Rape is defined by reference to lack of consent, but the definition of standard sexual assault is an ‘unlawful and indecent assault’: it does not use the term consent.
Note: ‘assault’ itself requires a lack of consent; but assault is defined in a different Chapter of the Code and so the new definition of consent does not apply. Instead, the old common-law principles of consent derived from the case law continue to apply.
The same is also true of the offence of assault with intent to commit rape. This problem was identified by identified by the QLRC in their report but the government chose not to act upon it.
Given that there’s now a major difference between what level of consent is required for rape and sexual assaults, it’s important to know where the line is between the two offences. An offence would be considered to be rape if there was any penetration, including of the external genitalia or anus with any object or part of the body; or if there was any penetration of the mouth with the penis.
Conclusion
Although the affirmative consent laws came into force in September 2024, it’s important to know that the old definition of consent will still apply to any offending alleged to have been committed prior to that time. After September, it still applies to ordinary sexual assaults.
If you’re dealing with a rape charge relating to an act that allegedly occurred on or after 23 September 2024, be aware that the courts will no longer look to the relationship that you have with the other person for the purpose of determining whether consent should have been explicitly communicated. They’ll consider that any sexual acts meeting the threshold of rape must be considered on their own, and that consent must be communicated by some word or act in respect of each sexual act.
Vocare Law is well equipped to assist our Criminal Law clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on your Criminal Law matter. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Martin Churchill
