Rape in a Relationship: Queensland Court Cases Explained

A rape allegation can arise between people who are married, living together, dating or who have previously been in a relationship. One important principle of Queensland criminal law is that being in a relationship does not mean that one person has automatically consented to sexual activity with the other.

A person can withdraw consent during sexual intercourse. Consent on one occasion does not establish consent on another occasion, and a previous sexual relationship does not give either person a continuing right to sexual activity.

Queensland court decisions illustrate how difficult these cases can be. The central issues may include whether consent was given, whether it was withdrawn, what the accused understood about consent, and whether the prosecution proved the charge beyond reasonable doubt.

This article examines several reported Queensland cases involving complainants and defendants who were or had been in intimate relationships. It discusses the relationship background, the allegations, the key legal issues and the court outcomes.

The cases are particularly useful in understanding how courts assess consent and the defence of an honest and reasonable but mistaken belief in consent.

1. R v Hunt [1994] QCA 226 – A Former De Facto Partner Convicted of Rape

Background of the relationship

The defendant, Paul Ross Hunt, and the complainant had previously lived together in a de facto relationship. They separated in January 1993 but remained in contact and had sexual intercourse on approximately four occasions after separating.

The Court of Appeal also heard evidence about the history of their relationship. During the relationship, the defendant had allegedly punched the complainant, threatened her with a firearm and used violence to remove her clothing.

What happened?

On 2 June 1993, the defendant attended the complainant’s home. She initially refused to let him inside and had changed the locks.

The defendant broke the screen door, pushed the complainant to the ground and dragged her inside by her hair. He then disconnected the telephone and locked the back door.

Inside the bedroom, he asked whether she wanted to have sex with him and warned her that if she did not say yes, she could have him charged with rape.

The complainant answered yes because she was frightened and believed he would hit her if she refused. Sexual intercourse followed.

The defendant maintained that the intercourse was consensual and that the encounter involved affection and mutual willingness.

Key legal issue

The important issue on appeal was whether the jury should have been directed to consider whether the defendant had an honest and reasonable, but mistaken, belief that the complainant consented.

The defendant argued that her verbal answer and the absence of physical resistance raised that possibility.

Why did the defendant remain guilty?

The Court of Appeal dismissed the appeal. It considered the circumstances surrounding the encounter, including the complainant’s attempts to keep the defendant out of the house, her efforts to escape, the violence and the fear in which she gave her verbal answer.

The Court concluded that there was insufficient evidence to require the jury to consider the defence of mistake of fact.

The case demonstrates that an apparent verbal agreement does not necessarily establish consent when the surrounding circumstances suggest that the answer was given because of fear or coercion.

Case reference: R v Hunt [1994] QCA 226.

2. R v Stephens [1994] QCA 507 – Rape Within an Existing De Facto Relationship

Background of the relationship

The defendant was 21 years old and was living in a de facto relationship with the complainant, a young woman.

The case involved two counts of rape and one count of indecent assault. The offences occurred on 4 January 1993.

What happened?

The defendant was convicted following a trial in the District Court.

The complainant’s evidence established the circumstances of the sexual offending. The defendant was convicted of two counts of rape and one count of indecent assault.

The sentencing judge initially imposed three years’ imprisonment, with a recommendation that the defendant be eligible for parole after serving six months.

Key legal issue

The Attorney-General appealed against the sentence, arguing that it was too lenient.

One issue was whether the fact that the complainant and defendant were in an existing de facto relationship had resulted in the sentencing judge treating the rape offences too leniently.

Why was the sentence increased?

The Queensland Court of Appeal allowed the Attorney-General’s appeal and increased the sentence to five years’ imprisonment, recommending parole eligibility after two years.

The Court made clear that rape does not become less serious merely because the offender and complainant are in an intimate relationship.

This is an important case because it rejects the idea that a person has a lesser right to refuse sexual intercourse simply because they are living with, married to or in a relationship with the accused.

Case reference: R v Stephens [1994] QCA 507.

3. R v Johnson [2015] QCA 270 – Consent Withdrawn During Sexual Intercourse

Background of the relationship

The defendant met the complainant through Facebook. They entered into a relationship that lasted approximately seven weeks.

The relationship was relatively new, but the case demonstrates that consent is required even where two people are dating and have previously engaged in consensual sexual activity.

What happened?

The defendant and complainant engaged in sexual intercourse.

During intercourse, the complainant withdrew her consent. She told the defendant to stop and said no several times.

The complainant alleged that the defendant continued despite her requests.

The defendant was convicted of rape following a jury trial.

Key legal issue

The defendant appealed, arguing that the verdict was unreasonable and that the evidence did not support the conviction.

An important issue was whether the defendant could have honestly and reasonably believed that the complainant continued to consent.

Why did the defendant remain guilty?

The Queensland Court of Appeal dismissed the appeal.

The Court considered that the complainant’s repeated statements, including telling the defendant no and to stop, provided a sufficient basis for the jury to conclude beyond reasonable doubt that the defendant was not mistaken about whether she consented.

The case demonstrates a fundamental principle: consent can be withdrawn after sexual intercourse has commenced.

A person who initially agrees to sexual activity does not lose the right to withdraw that agreement.

Case reference: R v Johnson [2015] QCA 270.

4. R v KAP [2016] QCA 349 – Allegation Between a Separated Husband and Wife

Background of the relationship

The defendant and complainant had been married for approximately two years and had a child together.

Their relationship had experienced difficulties. The complainant gave evidence that the defendant restricted her freedom to maintain separate bank accounts and visit friends and family. She also described arguments and incidents of physical violence.

The couple separated in 2013, although they had periods of living together again.

What happened?

On 8 May 2014, the defendant attended the complainant’s home, ostensibly to visit their child.

Sexual intercourse occurred, but the parties gave very different accounts of what happened.

The complainant alleged that the defendant forcibly held her down on the bed and verbally threatened her.

The defendant maintained that the intercourse was consensual and had been initiated by the complainant.

The jury accepted the prosecution case and convicted the defendant of rape.

Key legal issue

The central issue at trial was whether the complainant had consented to sexual intercourse.

On appeal, the defendant challenged the admission of medical expert evidence concerning the frequency of visible genital injury in sexual assault cases. He also argued that the jury should have received a specific direction about that evidence.

Why did the defendant remain guilty?

The Queensland Court of Appeal dismissed the appeal.

The Court did not accept that the complaints about the medical evidence or the trial judge’s directions established a basis for overturning the conviction.

The case illustrates that the fact that a husband and wife have previously engaged in consensual sexual activity does not establish consent to a later sexual encounter.

It also demonstrates that the absence or presence of physical injury is not, by itself, determinative of whether sexual intercourse was consensual.

Case reference: R v KAP [2016] QCA 349.

5. R v BDV [2022] QCA 219 – Five Rape Convictions Set Aside Because of Inadequate Jury Directions

Background of the relationship

The defendant and complainant were involved in a sexual relationship.

Their relationship developed over time. The evidence included occasions of consensual sexual intercourse, and the complainant acknowledged that there had been times when she had initiated sexual activity.

However, the relationship later became complicated, and the parties had disagreements about whether they would continue their sexual relationship.

What happened?

The case involved several alleged incidents of rape.

One incident occurred on 25 November 2019, after the parties had agreed to stop having a sexual relationship and remain friends.

They were lying on a bed talking. The complainant was wearing a jumper and underwear.

The complainant alleged that the defendant attempted to initiate sexual intercourse despite her saying words to the effect that they were just friends and she did not want sexual activity.

She said that he initially got off her but then got back on top of her, moved her underwear and penetrated her vagina. She also alleged that he subsequently attempted anal penetration despite her objections.

The jury convicted the defendant of five counts of rape. However, the trial judge had directed an acquittal on another count after a successful no-case submission.

Key legal issue

The defendant appealed on the basis that the jury had not been adequately directed about:

• Whether the complainant consented on each individual occasion.

• Whether consent had been withdrawn.

• The relationship between the evidence of non-consent and the defence of an honest and reasonable but mistaken belief in consent.

• The appropriate use of evidence concerning the defendant’s alleged violent conduct.

The Court of Appeal emphasised that the jury needed to consider the circumstances of each alleged incident separately.

Why were the convictions set aside?

The Queensland Court of Appeal allowed the appeal and set aside the five convictions. It ordered a retrial.

The Court found that the jury had not received sufficiently clear directions explaining how the evidence related to the questions of consent, withdrawal of consent and mistake of fact.

Importantly, this was not a finding that the defendant was innocent or that the complainant had consented. The convictions were set aside because of errors in the way the jury had been directed, and the matter was to be retried.

Why is this case important?

It demonstrates that where the parties have been in a sexual relationship, the jury must carefully consider the evidence relating to each alleged incident.

Previous consensual sexual activity may be part of the factual background, but it does not establish consent to later sexual activity.

Case reference: R v BDV [2022] QCA 219.

6. R v RBJ [2023] QCA 162 – One Rape Conviction and Two Acquittals

This case provides an interesting example of a jury reaching different verdicts on separate rape allegations involving people who were in a relationship.

Background of the relationship

The defendant and complainant were in a relationship at the time of the alleged offending.

What happened?

The defendant attended the complainant’s mother’s home on 10 October 2022 and entered the complainant’s bedroom without invitation while she was asleep.

The complainant alleged that, despite her protests, the defendant forcibly removed her clothing and raped her on three occasions.

Between the first and second alleged incidents, the complainant went to the bathroom to shower.

The defendant faced three counts of rape.

What did the jury decide?

The jury convicted the defendant of one count of rape but acquitted him of the other two counts.

The defendant appealed the conviction, arguing, among other things, that the guilty verdict was inconsistent with the two acquittals.

What did the Court of Appeal decide?

The Queensland Court of Appeal allowed the appeal, set aside the conviction on the remaining count and ordered a new trial.

The Court considered that the jury could rationally distinguish between the first incident, when the defendant initially entered the complainant’s bedroom, and the later incidents, when the complainant returned to the bedroom after showering.

The Court did not find that the jury’s different verdicts were necessarily inconsistent.

The case demonstrates that each count must be assessed according to its own circumstances. A jury may accept some parts of a complainant’s evidence and have a reasonable doubt about other allegations.

It is also important to understand that the appellate order was for a retrial of the remaining count, not a finding that the defendant had been acquitted of all allegations.

Case reference: R v RBJ [2023] QCA 162.

What Do These Queensland Cases Tell Us About Rape Within a Relationship?

The cases demonstrate several important principles.

1. A relationship does not establish consent

A husband, wife, boyfriend or girlfriend does not have an automatic right to sexual intercourse.

Consent must exist for the particular sexual activity in question.

2. Consent can be withdrawn

A person may initially consent to sexual intercourse and subsequently withdraw that consent.

If the other person continues after consent has been withdrawn, the circumstances may amount to rape.

3. Previous consensual sexual activity does not establish future consent

The fact that the parties have previously engaged in consensual sexual activity does not mean that consent exists on every subsequent occasion.

This was an important consideration in R v Johnson and R v BDV.

4. The circumstances surrounding the relationship may be relevant

Evidence about the history of the relationship, previous threats, violence, communications and the parties’ conduct may assist the jury in understanding the circumstances surrounding the alleged offending.

However, evidence of previous conduct must be considered according to the applicable rules of evidence and the purpose for which it is admitted.

5. The defence of mistake of fact must be considered carefully

A defendant may raise the issue of an honest and reasonable but mistaken belief in consent under sections 24 and 348A of the Criminal Code (Qld), where applicable.

The question is not simply whether the defendant says they believed the complainant consented.

The court must consider the evidence supporting that belief, including anything the defendant said or did to ascertain whether the other person was consenting.

Voluntary intoxication cannot be used to establish that a belief was reasonable under section 348A.

6. Each allegation must be considered separately

Where several counts of rape are alleged, the jury must consider the evidence relating to each count.

A finding of guilt on one count does not automatically establish guilt on another. Equally, an acquittal on one count does not automatically mean that the complainant’s evidence must be rejected entirely.

What Is the Law of Consent in Queensland?

Under section 348 of the Criminal Code (Qld), consent involves free and voluntary agreement.

Section 349 defines rape and includes specified forms of penetration without consent.

The legislation recognises that consent cannot be established merely by the absence of physical resistance. The circumstances in which a person participates, including whether they are acting because of fear, threats or coercion, may be relevant.

Section 348A deals specifically with an honest and reasonable but mistaken belief in consent.

These provisions are important when assessing allegations involving current or former partners.

The applicable version of the legislation and any transitional provisions must be considered when dealing with historical allegations.

Facing a Rape Allegation in Queensland? Obtain Legal Advice

Rape allegations involving people who are or were in a relationship can involve complicated factual and legal issues.

The prosecution must prove the elements of the offence beyond reasonable doubt. The evidence may include the parties’ relationship history, text messages, communications, witness accounts, medical evidence and the circumstances surrounding each alleged incident.

The appropriate legal approach depends on the particular allegations and the available evidence.

If you have been charged with rape, are under police investigation or have been asked to attend a police interview, it is important to obtain legal advice before making decisions about how to respond.

Call AJ Faisal for a free initial consultation to discuss your circumstances and understand the legal options that may be available.

This article is AI-generated and provides basic general information only. It is not legal advice and does not constitute advice from a lawyer. The case summaries are simplified and should not be relied upon as a substitute for reading the full judgments or obtaining independent legal advice. If you require advice about your circumstances, please contact a qualified criminal lawyer. You are welcome to call AJ Faisal for a free initial consultation.

Sources and further reading

• Queensland Criminal Code – sections 24, 348, 348A and 349 – statutory provisions concerning mistake of fact, consent and rape.

• R v Hunt [1994] QCA 226

• R v Stephens [1994] QCA 507

• R v Johnson [2015] QCA 270

• R v KAP [2016] QCA 349

• R v BDV [2022] QCA 219

• Queensland Domestic and Family Violence Benchbook – Court of Appeal case database

AI Editorial note: I have deliberately included cases where convictions were upheld, convictions were set aside and a retrial ordered, and a case involving both guilty and not-guilty verdicts. This avoids giving readers the misleading impression that every relationship-based rape allegation has the same factual or legal outcome.