From Our Desk

On Monday 23 September 2024, Queensland introduced significant reforms to its sexual consent criminal law, aiming to modernise and provide clarity on what constitutes consensual sex. The changes enacted in 2023, are a result of recommendations from the Queensland Law Reform Commission (QLRC). The reforms reflect contemporary attitudes toward sexual autonomy, and have brought about changes to the legal definition of rape as well the introduction of a specific offence of ‘Stealthing’.

1. Affirmative Consent Model

Under the new affirmative consent model, consent to sexual activity must be mutually agreed. The changes can perhaps be best described as now requiring all participants in a sexual encounter must now ‘say or do something to seek consent, and consent must be communicated back to the asking participant’.

As often is the case, criminal trials in Queensland are run on a defendant’s instructions that they genuinely and mistakenly believed that the complainant in their matter was consenting. The glaringly obvious change in the laws is that consent can no longer be “implied”. Attorney-General, Minister for Justice and Minister for the Prevention of Domestic and Family Violence Yvette D’Ath has said “…sexual offence laws are often misunderstood, and rape myths and stereotypes, including narratives of “implied consent”, still feature heavily in trials”.

2. Stealthing Criminalised

"Stealthing" is the act of removing a condom during sex without the other party's knowledge or consent. Such conduct is now explicitly recognised as a criminal offence in Queensland and is one which is punishable by life imprisonment, and whilst the same conduct could ordinarily have been charged under the previous laws, it is now recognised as a separate offence.

This non-consensual act has been categorised as a form of sexual violence, and the reformed laws make it clear that consensual sexual intercourse with a condom does not imply consent to sexual intercourse without one.

3.Redefinition of Rape

The definition of rape in Queensland has been expanded to cover a broader range of non-consensual acts. The previous definition of consent involved the words “being freely and voluntarily given by a person with the cognitive capacity to consent”.

The Importance of these changes

These reforms reflect Queensland’s commitment to ensuring that consent is clear, mutual, and respected. By criminalising stealthing and redefining rape, the state has addressed key issues that were previously either under-acknowledged or insufficiently covered by law. These changes aim to provide a stronger legal framework to protect victims and prosecute offenders in sexual violence cases.