Rape & Sexual Assault
Lawyer Cairns
Rape and sexual assault are among the most serious charges in Queensland criminal law. They carry life imprisonment, strict bail conditions, and consequences that extend far beyond the courtroom. If you have been charged, you need a lawyer who will hear the full account without judgment and advise on the basis of what the evidence actually shows. Call Sacha. The conversation is completely confidential.
The Charges and What They Mean
Rape — Section 349 of the Criminal Code Maximum penalty: life imprisonment. Under Queensland law, rape covers all forms of penetration without consent: Penile intercourse without consent Penetration of the vulva, vagina, or anus with any body part or object without consent Penetration of the mouth with a penis without consent The offence is gender neutral — anyone can commit rape and anyone can be a victim. A child under 12 is incapable of giving consent as a matter of law. Since 23 September 2024 , stealthing — removing or tampering with a condom during sex without the other person's consent — is expressly treated as rape under Queensland law. Attempted Rape — Section 350 Maximum penalty: 14 years imprisonment. Charged where the prosecution alleges the defendant attempted to commit rape but the act was not completed. Assault with Intent to Commit Rape — Section 351 Maximum penalty: 14 years imprisonment. Charged where the prosecution alleges an assault was committed with the intention of committing rape. Sexual Assault (Aggravated) — Section 352 The base offence of sexual assault carries a maximum of 10 years. But aggravated forms carry significantly higher penalties: 14 years — where the assault involves oral contact with the genitals or anus Life imprisonment — where the assault involves a weapon, is committed in company, involves penetration with a body part other than a penis, or involves procuring another person for gross indecency Sexual assault is an alternative verdict to rape — meaning if you are charged with rape, the court can convict you of sexual assault instead if the evidence supports it. Which court? All of these charges are strictly indictable . They must be dealt with in the District Court . The matter begins in the Magistrates Court but is committed to the District Court through a committal proceeding. The only exception is base sexual assault (10-year maximum), which can be dealt with in the Magistrates Court if the victim is 14 or older, the defendant pleads guilty, and the Magistrate agrees to deal with it summarily.
Consent — The Central Issue
In most rape and sexual assault cases, consent is the central issue. The prosecution must prove beyond reasonable doubt that the complainant did not consent — or that any apparent consent was not freely and voluntarily given. Queensland's affirmative consent model (from 23 September 2024) If the alleged offence occurred after 23 September 2024 , the new consent framework applies: Consent means free and voluntary agreement — not just the absence of "no" Silence or passivity is not consent — the person must say or do something to communicate agreement Consent can be withdrawn at any time — if the act continues after withdrawal, it continues without consent You cannot claim "honest mistake" about consent unless you said or did something to check Voluntary intoxication does not make an unreasonable belief in consent reasonable Circumstances where consent does not exist The law lists specific situations where consent is absent: The person does not say or do anything to communicate consent The person is unconscious or asleep The person is too affected by alcohol or drugs to consent (or to withdraw consent) The person participates because of force, fear, coercion, blackmail, or intimidation The person is overborne by authority, trust, or dependency The person is misled about the nature or purpose of the act Stealthing — the person consented to sex with a condom, but the condom was removed, tampered with, or known to have broken Before 23 September 2024 If the alleged offence occurred before that date, the previous consent framework applies. The "mistake of fact" defence operated differently — the question was whether the defendant's belief in consent was honest and reasonable, without the current requirement to have actively confirmed consent. Sacha will advise on which framework applies to your case.
Bail — Show Cause
Rape and aggravated sexual assault charges carrying life imprisonment are show cause offences. This means the normal presumption in favour of bail is reversed — you must demonstrate to the court why you should be released, rather than the prosecution having to argue why you should not be. If you cannot show cause, the court must refuse bail . What the court considers The court looks at whether there is an unacceptable risk that you would: Fail to appear at court Commit an offence while on bail Endanger the safety of the complainant or any other person Interfere with witnesses or obstruct justice Sacha prepares detailed bail submissions addressing each of these factors — your ties to the community, your employment, your family obligations, your willingness to comply with strict conditions, and any other matters that support release. Bail conditions Where bail is granted in rape and sexual assault matters, conditions are typically strict: no contact with the complainant (directly or through a third party), a residential condition, GPS monitoring, surrender of passport, regular reporting to police, and sometimes a curfew. Supreme Court bail For repeat serious child sex offences , only a Supreme Court judge can grant bail. Sacha can appear in the Supreme Court for bail applications where required. Urgent applications If you have been charged and are being held in custody, call Sacha immediately on 0425 429 458 . Bail applications can be made urgently.
The Court Process
Committal proceeding Rape and serious sexual assault charges begin in the Magistrates Court but are committed to the District Court through a committal proceeding. The Magistrate considers whether the evidence is sufficient to put you on trial. This is a procedural step — but it matters, because the committal is where defence lawyers can test the strength of the prosecution's evidence, including (in some cases) cross-examining the complainant. District Court Once committed, the matter proceeds in the District Court. If you plead guilty, there is a sentencing hearing. If you maintain your innocence, the matter goes to trial before a judge and jury. Closed court and non-publication Sexual offence trials and committal proceedings are generally conducted in closed court — the public and media are excluded from the courtroom during the hearing. The complainant's identity is automatically protected by law. You can also apply for a non-publication order protecting your identity before committal or sentence. Sentencing If convicted of rape or aggravated sexual assault: The principle that imprisonment should be a "last resort" does not apply A sentence of 10 years or more triggers an automatic Serious Violent Offence (SVO) declaration — you must serve 80% before being eligible for parole For sentences between 5 and 10 years, the court has discretion on whether to make an SVO declaration Sex offender registration may apply — reporting obligations of 5 years, 10 years, or life depending on circumstances How the matter is prepared — the sentencing submissions, supporting material, any negotiation of the charge or the facts — materially affects the outcome. Preparation is not a formality.
Defending the Charge
Consent-based defences If the issue is whether the complainant consented, the defence involves examining the full circumstances — communications before and after the alleged offence, the complainant's account for inconsistencies, any witnesses, and the forensic evidence. Under the current law, you must also be able to show you took steps to confirm consent. Identification In some cases, the issue is not whether an offence occurred, but whether the right person has been charged. Identification evidence — eyewitness testimony, CCTV, DNA — is examined for reliability. False allegations Where the allegation is maintained to be false, defence preparation involves preserving and gathering evidence that contradicts the complainant's account — messages, records, witness evidence, and sometimes expert evidence. This needs to start immediately. Tell Sacha everything from the first conference. Charge negotiation Where the evidence supports a lesser charge, Sacha negotiates with the prosecution before any plea is entered. A reduction from rape to sexual assault — or from aggravated sexual assault to the base offence — changes the maximum penalty, the sentencing range, and in some cases which court deals with the matter.
Frequently Asked Questions
What is the difference between rape and sexual assault?
Rape under section 349 of the Criminal Code specifically involves penetration without consent — penile intercourse, penetration of the vulva/vagina/anus with any body part or object, or penetration of the mouth with a penis. Sexual assault under section 352 covers indecent assault or procuring gross indecency without consent — a broader category that does not require penetration. Sexual assault is an alternative verdict to rape, meaning the court can convict of sexual assault if a rape charge is not proven but sexual assault is.
What does 'show cause' mean for bail?
Show cause means the normal presumption in favour of bail is reversed. Instead of the prosecution having to argue why you should be kept in custody, you must demonstrate to the court why your detention is not justified. If you cannot show cause, the court must refuse bail. Sacha prepares detailed submissions addressing all the factors the court considers.
What is stealthing?
Stealthing is the non-consensual removal of, or tampering with, a condom during sex. Since 23 September 2024, Queensland law expressly treats stealthing as a circumstance where consent does not exist — meaning stealthing can constitute rape under section 349 of the Criminal Code , carrying a maximum penalty of life imprisonment.
Can I get a non-publication order?
Yes. If you are charged with a prescribed sexual offence (including rape and sexual assault), you can apply for a non-publication order preventing the media from publishing your identifying details before committal or sentence. The court considers whether publication would prejudice justice, cause undue hardship, or endanger safety. Sacha will advise on whether an application is appropriate and, if so, file it early — ideally at the first court appearance.
What is a Serious Violent Offence (SVO) declaration?
If you receive a sentence of 10 years or more for a sexual offence, an SVO declaration is automatic — you must serve 80% of the sentence before you are eligible for parole. For sentences between 5 and 10 years, the court has discretion on whether to make the declaration. SVO declarations significantly affect how long you actually spend in custody.
What if the allegation is historical?
Historical sexual offence allegations — sometimes relating to events decades ago — are prosecuted under the law that applied at the time of the alleged offence, but using the court procedures that apply now. The consent framework, the maximum penalties, and the available defences may be different depending on when the offence is alleged to have occurred. Sacha will advise on which law applies to your specific case.
Fixed Fees
- District Court Plea — $12,000
- Show Cause Bail Application — $5,500
- Non-Publication Order — $3,300
- District Court Trial (1–3 days) — $15,000–$25,000
- District Court Trial (4+ days) — $25,000–$50,000+
- Committal Hearing — $5,800