This article is for general information only and should not be relied on for specific legal advice.  The author will not be held responsible for any action that a person takes as a result of interpretation of the contents of this article.  It is important to seek specific advice from a qualified and experienced lawyer for any legal problem. 

What is Rape?

In Queensland, it is an offence to rape another person. A person may be charged with this offence if they have carnal knowledge with another person without their consent; if they penetrate the vulva, vagina or anus of another person with a part of their body which is not a penis without the person’s consent; or if they penetrate the mouth of another person with their penis without the person’s consent. These offences are not gender-sensitive, and thus can be in relation to a male or female victim.

In essence, a person may be charged with Rape if they commit a sexual act which penetrates the mouth, vulva, vagina or anus of another person without their consent.To be charged with Rape for penetrating the mouth of another person, the offender must have used their penis to penetrate the mouth of the victim. In relation to the penetration of the vulva, vagina or anus, the offender need not penetrate the victim with a penis, but with any part of their body.

A person will be charged with Rape if the penetration element is satisfied, and the victim did not consent to the penetration. A person has not received consent if they obtained it by force, threat or intimidation, exercising of authority, or by making false or fraudulent representations of the nature or purpose of the act. If a person is charged with raping a child under the age of 12, they will not be able to argue that the child consented. The law states that children under the age of 12 cannot consent to sexual intercourse or other sexual acts, even if they say that it is okay.

A person who is convicted of Rape may be sentenced as a Serious Violent Offender, which means they must serve at least 80 per cent of their custodial sentence. This means that the offender will not be eligible for or released on parole until they have served 80 per cent of their term of imprisonment.

The Law:-

Section 349 of the Criminal Code (Qld) 1899 states;

(1) Any person who rapes another person is guilty of a crime.

(2) A person rapes another person if—

(a) the person has carnal knowledge with or of the other person without the other person’s cons ent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or

(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

Elements of the Offence:-

It is the duty of the prosecutor to prove beyond a reasonable doubt that the Defendant has committed the offence.  Every charge has a number of elements that the Prosecutor must prove beyond a reasonable doubt.  For the charge of Rape the Prosecution must prove;

1.  Defendant – The Prosecutor has to prove the identification of the offender;

2. Had Sexual Intercourse;

3. With Another Person;

3.  That the other person did Not Consent

4.  The defendant Knew that the other person did Not Consent.

Maximum Penalty for Rape:-

The maximum penalty for this offence is life imprisonment.


In Queensland, if a person is convicted of Rape, then the court could impose one of the following penalties:

  • Jail (suspended, parole or actual time);
  • Intensive Corrections Order;

The actual penalty will depend on the circumstances of the matter including the seriousness of the offence and the individual circumstances and background of the Defendant.

Possible Defences:- 

There are a number of defences available to charges at law.  Not every defence is available to every charge.  You will need to seek specific legal advice to see if you have a defence available to you for this charge.  Some of the common defences available in criminal charges are;

  • Necessity;
  • Mistake of Fact;
  • Public Safety;
  • Self Defence or defence of another person;
  • Intoxication;
  • Provocation;
  • Accident;
  • Duress;
  • Compulsion;
  • Insanity;
  • Automatism

Which Court will your matter be heard in?

The charge Rape will initially be heard in the Magistrates Court in Queensland.  This charge is too serious to be determined by a Magistrate and is an indictable offence.  A committal hearing will have to be conducted and then the matter will proceed to the District Court.  If you enter a plea of guilty then the charge will be determined by a Judge.  If you enter a plea of Not Guilty then the trial will be before a Judge and Jury.  If you are found guilty then you will be sentenced by the Judge. 

What should I do if the police want to speak to me about a Rape allegation or if I am charged with Rape?

You have the right to remain silent. You DO have to provide police with your name, date of birth and contact details. You should NOT answer any questions, make any statement or participate in any interview with the police. You should be polite to the officer but insist that you want to talk to your lawyer. You have the right to telephone a friend, relative or lawyer.

Call an Expert

If you are charged with a criminal offence, it is very important that you seek immediate legal advice. Our team at Brooke Winter Solicitors can give you over the phone advice. We have a solid reputation as expert Criminal Lawyers and can represent you in court.

Call us on 1300 066 669 if you have any questions. We can assist you no matter where you are located and can appear in every court.