The short answer
Since 23 September 2024, Queensland has had an affirmative consent model for rape and sexual assault cases. The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 rewrote the consent provisions of the Criminal Code: consent now means free and voluntary agreement, a person who says and does nothing is not taken to be consenting, and an accused person generally cannot rely on a mistaken belief in consent unless they said or did something to find out whether the other person was consenting.
Two things matter just as much as the headline. First, the new law applies only to alleged offences committed wholly after 23 September 2024; historical allegations are decided under the old law. Second, the mistake of fact excuse was not abolished: it survives, but in a much narrower form. Both points are regularly misreported, and both can decide a case.
If you are facing an allegation where consent is in issue, you can speak to us confidentially about which rules apply to your matter, day or night, without judgement.
What “affirmative consent” means in the Criminal Code
The rules sit in sections 348, 348AA and 348A of the Criminal Code (Qld) (as at 3 July 2026), and they apply to the offences in Chapter 32: rape, attempted rape, assault with intent to commit rape, and sexual assault.
Section 348 now provides:
- consent means free and voluntary agreement;
- consent can be withdrawn at any time; and
- a person who does not offer physical or verbal resistance is not, by that fact alone, taken to consent; silence or “freezing” is not consent.
Agreeing to one act is not agreement to a different act, or to the same act at another time or place, or with a different person.
The section 348AA list: when there is no consent
Section 348AA sets out a non-exhaustive list of circumstances in which a person does not consent. The first item is the affirmative-consent core: there is no consent where the person does not say or do anything to communicate consent. The list also includes situations where a person:
- lacks the cognitive capacity to consent, or is so affected by alcohol or drugs as to be incapable of consenting;
- is unconscious or asleep;
- participates because of force, or fear of force or harm of any kind; the section’s examples extend to economic harm, reputational harm and psychological abuse in a domestic setting;
- is coerced, blackmailed, intimidated or unlawfully detained;
- is overborne by the abuse of a relationship of authority, trust or dependence;
- is mistaken about the nature or purpose of the act, or the identity of the other person, because of false or fraudulent representations.
Stealthing is now expressly covered
Section 348AA(1)(n) deals directly with stealthing: non-consensual condom removal or tampering. If sex is agreed to on the basis that a condom is used, there is no consent where the other person does not use one, tampers with it, removes it, or realises it is no longer effective and continues anyway. Conduct of that kind can therefore be charged as rape. Before the 2024 Act this scenario had to be argued through the general consent definition; it is now on the face of the statute.
What happened to mistake of fact
Under section 24 of the Criminal Code, a person is not criminally responsible if they acted under an honest and reasonable but mistaken belief: in this context, a belief that the other person was consenting. This excuse still exists, but section 348A now constrains it in two decisive ways:
- You must have said or done something. A belief in consent is not reasonable if the accused did not, immediately before or at the time of the act, say or do anything to ascertain whether the other person was consenting (s 348A(3)).
- Intoxication is irrelevant. A jury cannot have regard to the accused’s voluntary intoxication when deciding whether the belief was reasonable (s 348A(2), a rule that has applied since 2021).
There is a limited exception: an accused who proves that a cognitive impairment or mental health impairment was a substantial cause of them not saying or doing anything may still rely on the excuse (ss 348A(4)–(6), 348B, 348C). The onus is on the accused, and expert evidence is required.
The practical effect: in a trial about events after 23 September 2024, the first question for a mistake of fact defence is no longer just “what did you believe?” but “what did you say or do to find out?” If the answer is “nothing”, the excuse will almost never be available.
Which law applies to your case: the date matters
The 2024 Act’s transitional provision (Criminal Code s 761) draws a hard line:
- Offence alleged to have been committed wholly after 23 September 2024 → the new law (ss 348, 348AA and the amended s 348A) applies.
- Offence alleged to have been committed wholly or partly before that date → the former provisions apply, no matter when the person is charged or tried.
Because complaints in sexual offence matters are often made months or years after the alleged events, Queensland courts will be applying both regimes in parallel for many years. The official jury directions now maintain separate benchbook chapters for pre- and post-September-2024 offending. If you are accused of something said to have happened in 2023, the old consent law (including the broader mistake of fact excuse discussed in our detailed article on mistake of fact) is the law that governs your trial.
How Queensland got here
- June 2020: the Queensland Law Reform Commission’s Report No 78 reviewed consent law and the mistake of fact excuse. It recommended clarifying amendments but expressly declined to recommend a full affirmative consent model.
- 7 April 2021: the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 commenced, codifying the case-law position (silence alone is not consent; consent can be withdrawn) and excluding the accused’s voluntary intoxication from the reasonableness assessment.
- 2022–2023: the Women’s Safety and Justice Taskforce recommended going further, and the government committed to an affirmative consent model in line with reforms in New South Wales and Victoria.
- 23 September 2024: the affirmative consent provisions of the 2024 Act commenced by proclamation, inserting s 348AA and the “say or do something” rule in s 348A. (The same Act’s coercive control offence commenced on 26 May 2025.)
What this means if you are accused
Rape carries a maximum penalty of life imprisonment, and sexual assault carries up to 10 years (more where aggravating circumstances apply). Nothing about the affirmative consent reforms lowered those stakes; they changed what the prosecution must prove and what defences are realistically available, and they made early, specific legal advice more important, not less.
What you say to police in an interview (including well-meaning answers like “she didn’t say no”) can now carry very different legal significance depending on the date of the alleged offence. Do not answer questions, and do not respond to calls or messages from the complainant, before getting advice.
If you or someone you love is under investigation or has been charged with a sexual offence, read about how we defend sexual offence charges or contact us for confidential, non-judgmental advice, available 24/7 for urgent matters.
This article is general legal information, not advice about your situation.
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