Last updated 2 February 2026

Sections 349 and 350 of the Criminal Code Act 1899 (Qld) (Criminal Code) deal with rape and attempted rape.

Rape is broadly defined to be all forms of penetration of the vagina, anus or mouth. In theory, no one form of penetration is any more serious than the other. The offence is gender neutral, which means that any gender may commit rape or be victims of it.

A person rapes another if the person:

  • engages in penile intercourse with another without their consent or
  • penetrates the vulva, vagina or anus of another to any extent with an object (e.g. a bottle) or any body part other than the penis (e.g. a finger) without their consent or
  • penetrates the mouth of another to any extent with their penis without the persons consent.

The legal definitions of vagina, vulva, penis and genitalia include surgically constructed genitalia so as to recognise post-operative transgender persons.

The law has now expressly acknowledged ‘stealthing’ as a circumstance of non-consent and rape. ‘Stealthing’ is the non-consensual removal of a condom or tampering with a condom before or during consensual sexual activity.

The offence of rape is punishable by life imprisonment.

Sexual assault is an alternative verdict to rape (i.e. if charged with rape, an accused may be convicted of sexual assault). Unlawful sodomy and incest are also available as alternative verdicts to rape.

Penile intercourse

Penile intercourse is defined in s 6 of the Criminal Code to mean the penetration, to any extent, of the vagina, vulva or anus of a person by the penis of another person.

A person engages in penile intercourse with another person if:

  • the person penetrates, to any extent, the vagina, vulva or anus of another person with the person’s penis
  • the person’s vagina, vulva or anus is penetrated, to any extent, by the penis of another person.

Consent

At a trial, the prosecution must prove lack of consent beyond reasonable doubt. Under the affirmative model of consent, consent to sexual activity must be mutually agreed, all participants have to say or do something to seek consent, and consent must be communicated back to the asking participant.

In the Criminal Code, ss 348 and 348AA consider the definition of consent in detail.

Consent means free and voluntary agreement.

A person may withdraw consent to an act at any time.

A person does not consent to an act just because they consented to another act with the same person, or the same act with that same person but at a different time, or the same act with a different person, or a different act with a different person.

Participants must also have the cognitive capacity to freely give consent.

The term ‘cognitive capacity’ recognises that a person must have the ability to understand the nature and effect of giving consent, though it does not equate to legal capacity. Some factors that impact upon a person’s cognitive capacity to consent include youth, intellectual impairment or intoxication.

Consent may not be obtained by force, threat, intimidation, fear of bodily harm, exercise of authority (e.g. where the accused is in a position of trust or authority) or fraud. The fact that an accused person is married to the complainant does not prevent them from being prosecuted for any sexual offence.

Other circumstances where the law states there is no consent include where the person is asleep or unconscious, or where there was consent for the use of a condom, but then the condom is removed or breaks and the person continues the act.

There is also no consent where a sex worker agrees to an act for a payment or reward but the customer is being fraudulent and agreeing with no intent or means.

A child under the age of 12 years is incapable of giving consent (s 349(3) Criminal Code).

Attempted rape

It is an offence to attempt to rape a person. The maximum penalty is 14 years imprisonment. ‘Attempt’ is defined in s 4 of the Criminal Code to mean where a person intends to commit the offence, but does not actually complete the commission of the offence.