Last updated 29 August 2016

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 both men and women may commit rape or be victims of it.

A person rapes another if the person without consent:

  • has unlawful carnal knowledge of another (see below) 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) or
  • penetrates the mouth of another with the penis to any extent.

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

The offence of rape is punishable by life imprisonment.

Carnal knowledge

Carnal knowledge is defined in ss 1 and 6 of the Criminal Code to mean vaginal or anal intercourse that is complete on penetration to any extent. It does not include penetration for a proper medical, hygienic or law-enforcement purpose.

Consent

At a trial, the prosecution must prove lack of consent beyond reasonable doubt. Consent must be freely and voluntarily given by a person with the cognitive capacity to 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.

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.

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.