Last updated 29 August 2016
Special categories of complainants to sexual offences include children and persons with an impairment of mind.
For offences of rape and sexual assault, the absence of consent is a crucial element of the offence. Where the victim is a child or person with an impairment of mind, the law deems that that person is not capable of giving consent.
Offences where consent is not an element
Offences under the Criminal Code Act 1899 (Qld) (Criminal Code) where the absence of consent is not an element include:
- unlawful sodomy with or of a person under 18 or a person with an impairment of mind (punishable by life imprisonment (s 208))
- indecent treatment of children under 16 (punishable by 20 years imprisonment (s 210))
- unlawful carnal knowledge of children under 16 (punishable by life imprisonment (s 215))
- abuse of persons with an impairment of mind (punishable by 14 years imprisonment for unlawful carnal knowledge and 10 years imprisonment for indecent treatment (s 216))
- using electronic communication (e.g. email, internet chat rooms, SMS messages) to procure children under 16 to engage in a sexual act, or to expose children under 16 to any indecent matter (the latter as defined in s 1) (punishable by 10 years imprisonment (s 218A)); grooming children under 16 (punishable by five years imprisonment (s 218B))
- incest (punishable by life imprisonment (s 222))
- maintaining a sexual relationship with a child under 16 (or under 18 in the case of sodomy) (punishable by life imprisonment (s 229B)).
If the child is over the age of 12, it is a defence for the accused to prove that they honestly believed on reasonable grounds that the child was of or above the age of 16 years (or 18 years for sodomy).
For most of these offences, the offence is aggravated (more serious) and the accused is liable to a harsher penalty if the child is under 12 years of age, is a lineal descendant of the accused or is under the accused’s guardianship or care.
Similarly, circumstances of aggravation exist in relation to offences involving persons with an impairment of mind.
For those offences involving a person with an impairment of mind, it is an excuse for accused persons to prove that they honestly believed on reasonable grounds that the person did not have an impairment of mind, or that the behaviour constituting the offence did not in the circumstances constitute sexual exploitation of the person with an impairment of mind.