Consent laws in Queensland

Any sexual activity without consent is sexual violence – no one has the right to make you do anything you don’t want to do.

In 2024, Queensland passed new laws about sexual consent and introduced the affirmative model of consent, which requires free and voluntary agreement to participate in a sexual activity where consent is mutually agreed.

These new laws commence from 23 September 2024 and will apply to conduct that occurs after this date. Sexual offences that occur before this date can still be prosecuted under existing laws.

What is the affirmative model of consent?

Consent must be mutually agreed – that means everyone has to say or do something to ask for consent, and that must be communicated back.

You can’t assume someone is consenting just because they don’t say no – consent must be communicated through words or conduct, for example, clear body language.

When the sexual activity changes, you must get consent for the new activity. You should not assume consent because a person has agreed in the past or has agreed to a different sexual activity.

If it is not clear someone has communicated consent, you must say or do something to check. You cannot assume someone is consenting just because they have not said ‘no’.

Everyone must also have capacity to consent. Where a person is intoxicated or has an impairment, this may affect their ability to consent. If you’re unsure, stop. If a person is asleep or unconscious, they cannot consent.

Stealthing criminalised

‘Stealthing’ – the non-consensual condom removal or tampering with a condom - will be explicitly  criminalised in Queensland as part of the changes to consent laws.

That means if a person consents to a sexual activity with a condom, that does not mean they are consenting to a sexual activity without a condom. So, you cannot remove or tamper with a condom without the other person’s knowledge and agreement. If the condom comes off during the sexual activity, you should stop.

Situations where there is no consent

The new consent laws outline some of the circumstances where there will be no consent. These include where someone…

• did not say or do anything to communicate consent;
• does not have the cognitive capacity to consent;
• is so affected by alcohol or another drug they are incapable of consenting or withdrawing consent;
• is unconscious or asleep;
• participates in the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to the person or another person, animal or property, and regardless of whether it was a single incident or part of a pattern of behaviour;
• participates in the act because of coercion, blackmail or intimidation, regardless of when it occurs or whether it is a single incident or part of an ongoing pattern;
• participates in the act because the person or another person is unlawfully confined, detained or otherwise deprived or their personal liberty;
• participates in the act because the person is overborne by the abuse of a relationship of authority, trust or dependence;
• participates in the act because of a false or fraudulent representation about the nature or purpose of the act, including about whether the act is for health, hygienic or cosmetic purposes;
• participates in the act with another person because the person is mistaken about the identity of the other person  or participates in the act with another person because the person is mistaken they are married to the other person;
• is a sex worker and participates in the act because of a false or fraudulent representation that the person will be paid or receive some reward for the act;
• participates in the act with another person on the basis that a condom is used for the act and the other person does any of the following things before or during the act: does not use a condom; tampers with the condom; removes the condom; or becomes aware that the condom is no longer effective but continues with the sexual act (‘stealthing’).

Using consensual violence during sex

Where consensual violence is used during sexual activity, everyone should make sure that everyone involved understands and agrees to the use of force and understands what might happen.

However, if someone sustains a really serious injury during a sexual activity, this can be used as evidence there was no consent, unless proven otherwise.

Read more about the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024.