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What is a rape charge in QLD?
Under section 349 of the Criminal Code Act 1899 (Q), rape is an offence that carries a maximum of life imprisonment.
As with any criminal offence, the offence is broken down into ‘elements’ and the Crown is required to prove each element beyond a reasonable doubt in order to secure a conviction.
Those elements are:
- The defendant had carnal knowledge (sexual intercourse);
- With the complainant;
- The complainant did not consent to the sexual intercourse.
What is consent defined as?
Consent is defined in section 349 of the Criminal Code Act 1899 1899 (Q) as:
1. “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give consent.
2. Without limiting subsection (1) , a person’s consent to an act is not freely and voluntarily given if it is obtained:
a. by force; or
b. by threat or intimidation; or
c. by fear of bodily harm; or
d. by exercise of authority; or
e. by false and fraudulent representations about the nature or purpose of the act; or
f. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.
3. A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.
4. If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.
Most rape trials and appeals are focused on whether consent was freely given and, if not, whether a defence of ‘mistake of fact’ was applicable. It is a question for the Jury to determine the facts unique to each matter.
Ultimately, it will be an assessment of the complainant’s mind at the time having regard to what the Jury finds their ‘acts’ done mixed with the evidence they give at trial about their state of mind at the relevant time. It is only once the Jury finds that consent was not given at the relevant time that it moves onto the, common, defence of mistake of fact.
There is a real misconception in the community that some of the following establish ‘consent’ or allow a Jury to be satisfied that there was consent given by the complainant:
- silence by the complainant;
- where the complainant met the defendant freely;
- no physical efforts by the complainant to stop the defendant, and so on.
All facts leading up to an allegation of rape are relevant to the Jury to allow them to understand the circumstances of the case and to establish whether consent was ‘freely and voluntarily given’ by the complainant.
Whilst there are a number of common features in each offence of rape charged, each set of circumstances is so vastly different that no singular feature of a case is telling. For instance, a rape allegation arising from a complainant who has just met a defendant is entirely different from a rape allegation arising from a complainant in a relationship with a defendant.
Once the Jury has received all the evidence, they will be instructed by the trial Judge that they can only convict the defendant if they find beyond a reasonable doubt that the complainant was not consenting to sexual intercourse at the relevant time.
Contact Rana Lawyers
The investigations in these, and most, matters are a crucial point in time. There are a number of decisions that have to be made at an early stage, one of the most important being whether to give an interview to the Police. That is why it is important to contact a solicitor as soon as you become aware of a complaint.
It is important to remember that anything said to the Police may be admissible against an accused person in their trial. The difficulty with this is if you give an interview and there are statements in your interview which appear inconsistent with ‘facts’, then a Jury can draw an inference that you told a lie because you had a guilty conscience.
This is one example of the risks of engaging with the Police before speaking with a rape lawyer. It is important that you seek legal advice before doing any interview with the Police.
At Rana Lawyers, our expertise, knowledge of the law, and commitment to your defence will be instrumental in helping you face any charges, understand your rights, and navigate the legal process.
