Indecent Treatment Charges in Queensland

(1) Any person who—

(a) unlawfully and indecently assaults another person;

…

is guilty of a crime.

Meaning of consent

(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the 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(4) If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.

Section 215 Carnal knowledge with or of children under 16 -

(1) Any person who has or attempts to have unlawful carnal knowledge with or of a child under the age of 16 years is guilty of an indictable offence.

(2) If the child is of or above the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for 14 years.

(3) If the child is under the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for life or, in the case of an attempt to have unlawful carnal knowledge, to imprisonment for 14 years.

(4) If the child is not the lineal descendant of the offender but the offender is the child’s guardian or, for the time being, has the child under the offender’s care, the offender is guilty of a crime, and is liable to imprisonment for life or, in the case of an attempt to have unlawful carnal knowledge, to imprisonment for 14 years.

(4A) If the child is a person with an impairment of the mind, the offender is guilty of a crime, and is liable to imprisonment for life.

The Prosecution must prove the defendant:

1. Had carnal knowledge of or with (the complainant).

2. Without her consent OR

1. Penetrated the vulva, vagina or anus of the other person.

2. To any extent.

3. With a thing or part of the defendant’s body that is not a penis.

4. Without the consent of the other person. OR

1. Penetrated the mouth of the other person.

2. To any extent.

3. With the defendant’s penis.

4. Without the consent of the other person.

The prosecution must prove that:

1. The defendant had carnal knowledge of complainant; Carnal knowledge means the insertion of the penis into the genitalia (or anus). Penetration by the penis is required: Holland v The Queen (1993) 67 ALJR 946. The offence is complete upon penetration; Penetration to the slightest degree is sufficient – there is no need for full penetration; Ejaculation is not necessary.

2. There was a relationship between the defendant and the complainant of the type which is alleged (offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece).

3. The defendant knew that there was that relationship, or a relationship of that type.

The prosecution must prove that:

1. The defendant dealt with the complainant.
   The term “deals with” includes a touching of the child. It does not have to be a touching of the child by the defendant’s hand – it can be a touching of the child by any part of the defendant’s body.

2. The dealing was indecent. The word “indecent” bears its ordinary everyday meaning, that is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.

3. The dealing was unlawful. Unlawful means not justified authorised or excused by law.

4. The complainant was under 16 years.