Consent and Sex – The Changing Laws in Queensland and What You Need to Know

On 11 October 2023, the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill (the Bill), which proposes a variety of amendments to the Criminal Code 1899 (the Code), was introduced to the Queensland Parliament.

The Bill aims to change the definition of consent when engaging in sexual acts and the circumstances in which consent cannot be legally obtained.

What is consent?

Under current Queensland law, consent is defined as something “freely and voluntarily given by a person with the cognitive capacity to give the consent”.

How is consent given?

The law does not define how consent must be given. However, it does not allow a person to assume their partner has consented because they haven’t said no to a sexual act.

Can consent be withdrawn?

Consent to an act can be withdrawn at any time before and during an act.

It cannot be withdrawn after the act.

Do the circumstances in which consent is given, matter?

In short, yes. A person’s consent to engage in an act is often conditional. This means that legal consent only applies within a set of specific circumstances.

These circumstances may relate to the type of act, the time or place at which the act can occur or the person with whom the act can be performed.

Legal consent cannot be obtained by false and fraudulent representations about the nature or purpose of the sexual act.

So, if the circumstances in which consent was originally given change, a person may no longer have their partner’s consent.

This means consent for new acts must be obtained before engaging in them.

What happens if you engage in a sexual act without your partner’s consent?

It is important to fully understand when you have the consent of your partner and when you don’t have consent.

Engaging in sexual acts without consent, as it is defined in the Code, is illegal and may result in you being charged with an offence of sexual assault, or rape.

Can the law find you guilty of a sexual offence, even if your partner has indicated their consent?

The law provides circumstances in which consent to an act cannot be obtained, regardless of whether or not your partner has verbally consented.

For example, the age or cognitive function of a person may be relevant. If an individual is under the legal age of consent (i.e. 16 years old in Queensland) or has a legally defined “impairment of the mind” they will be unable to consent to engage in any sexual act.

In what other circumstances can legal consent not be obtained?

Under the Code, consent will not be legal consent if it is given:

• by force;
• by threat or intimidation;
• by fear of bodily harm;
• by the exercise of authority;
• by false and fraudulent representations about the nature or purpose of the act; or
• by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

How will the Bill influence these circumstances?

The Bill proposes to amend the current definition of consent and expand the circumstances in which legal consent cannot be obtained.

In doing so, it further defines the more widely known circumstances in which a person cannot consent, for example, if they are intoxicated, unconscious, or asleep.

However, it also proposes new circumstances in which a person cannot consent, including when a person participates in a sexual act:

• because of coercion, blackmail or intimidation, regardless of how many times the coercion, blackmail or intimidation occurred;
• because they are “overborne” by the abuse of a relationship of authority, trust or dependence;
• without knowing their partner has a serious disease, provided they contract that disease; and
• on the basis that a condom is used and their partner:
  • does not use a condom;
  • tampers with the condom;
  • removes the condom; or
  • becomes aware that the condom is no longer effective but continues with the act.

  How will the Bill affect us in practice?

  At this stage, the Bill has not been passed. Until this occurs, the law on consent and sexual offences, as per the Code, will remain in force.

  However, should the Bill be passed, it will further restrict the conditions in which consent to engage in sexual acts can be lawfully obtained.

  Some words such as “overborne” are not defined in the Bill, leaving their definitions to be clarified and developed over time through case law.

  Within this changing legal landscape, it is important to remain aware of your obligations when it comes to sex. Consent is a delicate and complex area of law, which, if you are unsure about it, should be discussed with a trusted lawyer.

  Need Legal Advice? We Can Help

  If you require further advice in respect of offences where consent may be an issue, Potts Lawyers have a team of expert Criminal & Civil Lawyers ready to help.