Rape / Digital Rape / Oral Rape

Potts Lawyers > Criminal Law > Sexual Offences > Rape / Digital Rape / Oral Rape

Understanding Oral Rape under Queensland Law

In Queensland, oral rape is considered a serious criminal offence under section 349 of the Criminal Code. It involves non-consensual oral penetration. This form of sexual assault is treated with the same seriousness as vaginal rape or anal rape, and it carries the same maximum penalty: life imprisonment.

While often grouped under broader terms like rape or sexual assault, it’s important to understand that oral sex, when performed without clear and informed consent, becomes a criminal act of rape under Queensland law. This can occur in situations involving strangers, but also in acquaintance rape or even within existing relationships.

Allegations involving oral sexual activity may be deeply distressing for all parties involved, and the legal implications are significant. If you are facing such charges, legal guidance at an early stage is crucial. Our team at Potts Lawyers has experience handling a wide range of sexual offence cases — from unwanted touching to complex digital and oral rape matters — and can advise you on your rights, your defence options, and how to navigate the process.

We also recognise that some clients feel confused or overwhelmed about how sexual touching, oral sex, or previous consensual contact is viewed under the law. These are common concerns, and we take a respectful, confidential, and strategic approach to every case.

What the law says

Section 349 (2) of the Criminal Code Queensland states:

A person rapes another person if—

(a) the person has carnal knowledge with or of the other person without the other person’s consent; or
(b) the person penetrates the vulva, vagina, or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
(c) the person penetrates the mouth of the other person to any extent with the person’s penis without the person’s consent.

A child under the age of twelve years is not capable of giving consent.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:

The accused had sexual intercourse with another person.
The other person did not consent to the sexual intercourse.
The accused knew the other person did not consent to the sexual intercourse.

In some circumstances, sexual intercourse may involve circumstances of aggravation.
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

Maximum penalty

The maximum penalty for the offences of Rape / Digital Rape / Oral Rape is life imprisonment.

Which court will hear the matter

This matter is indictable which means that it is dealt with in the District Court.

Possible defences

Possible defences to this offence include but are not limited to:

Duress
Necessity
Identification (i.e. not the accused)
Honest and reasonable belief the complainant was consenting
Consent by the complainant

Key Questions About Oral Rape Charges

Is oral rape treated the same as other types of rape?

Yes. The law does not distinguish between types of penetration when it comes to rape charges. Oral rape, digital rape, and vaginal rape are all prosecuted under section 349 of the Criminal Code (Qld) and carry the same maximum penalty — life imprisonment.

Can oral sex ever be considered consensual?

Consent must be freely and voluntarily given. If the prosecution cannot prove that the oral act occurred without consent — or that the accused knew there was no consent — the charge may be contested. It is also possible to raise a defence based on an honest and reasonable belief in consent.

What are the common outcomes in oral rape cases?

Outcomes vary depending on the evidence, the presence of aggravating circumstances, and the strength of the defence. Our team has helped clients:

Negotiate reduced charges
Secure acquittals
Obtain non-custodial sentences in exceptional cases

We can advise you based on current Queensland sentencing trends and past case outcomes.

Related Offences and Legal Considerations

The legal framework for sexual offences in Queensland also includes matters such as sexual touching, unwanted contact, and assault by penetration. Even where physical injury is not present, allegations involving non-consensual oral sex or home invasion sexual assault are pursued with full force of law.

Cases involving child sexual abuse or persons under 12 are treated with special provisions — notably that a child of that age cannot legally consent, regardless of circumstances.

If you’re facing multiple allegations — for example, claims involving stranger rape or repeated offences — the court may consider aggravating circumstances during sentencing.

Additional Considerations in Oral Rape Cases

Sexual violence can take many forms, and the law in Queensland recognises a wide spectrum of offences, including sexual penetration, anal rape, vaginal rape, and oral sexual battery. These offences often arise in situations of intimate partner sexual violence, domestic violence, or contact that began consensually but later crossed legal boundaries.

Understanding the distinctions between sexual intercourse, sexual touching, and unwanted touching is essential for anyone facing serious charges. In some instances, what begins as consensual oral sex may later be alleged as non-consensual — and the legal implications can be severe. Courts also consider whether the circumstances involve a blitz assault, home invasion, or prior history of abuse.

Defending against oral rape charges requires not just legal knowledge, but also an understanding of how these cases are perceived by police, prosecutors, and the District Court. Our team takes a trauma-informed approach where needed, while rigorously testing the prosecution’s evidence — including any forensic claims, alleged genitoanal injuries, or inconsistencies in statements.

If you have been contacted by a police officer regarding allegations of sexual violence — even if no charges have yet been laid — we recommend seeking confidential legal advice immediately. You are entitled to representation before making any statements, including during forensic interviews or examinations.