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The child protection system and the criminal justice system

There are some key differences between the child protection and criminal justice systems, outlined below. The information is meant as a guide only:

The child protection system:

The criminal justice system:

Is guided by the principle that the best interests of the child are paramount.

Is guided by upholding the law.

Considers the impact of historic abuse and neglect in relation to concerns about the current risk of harm.

Treats each offence separately. A person can only be charged once for the same offence.

Responds to reports about significant harm to children and young people.

Responds to reports where there is evidence a crime has been or is currently being committed.

Forwards notifications to the relevant Child Safety Service Centre when the provided information meets the risk of significant harm threshold.

Will only progress a report of a criminal act to charges where there is sufficient evidence to prove beyond reasonable doubt that the reported offence occurred.

Needs to demonstrate it was more likely than not that the suspected offender has caused harm to a child.

Needs to prove beyond reasonable doubt that the suspected offender has committed a crime.

Regularly responds to concerns that do not constitute a criminal offence.

Only responds to reports of criminal offences.

Illegal sexual activity

Sexual expression in young people is both normal and developmentally appropriate. Some young people, their parents and the community can find it difficult to distinguish between consensual sexual activity and exploitative or abusive sex. This is particularly relevant when the young person is over the age of legal consent (16 years).

Practice prompt

It is illegal for anyone to have sex with anyone under the age of 16.

For young people aged 16-18, the difference between consensual sex and exploitation can be more difficult to distinguish.  Consider the power imbalance between the young person and the alleged abuser or offender when deciding if the young person is at risk of sexual exploitation. Sexual exploitation of young people aged between 16 and 18 is just as serious as sexual exploitation of young people under the age of 16.

Sexual Assault

Sexual assault is when a person:

  • touches another person inappropriately without their consent—for example, groping
  • forces a person against their will to commit an act of gross indecency—a sexual act that does not involve penetration, for example, a person forces another to touch their genitals
  • forces a person to see an act of gross indecency, for example the person masturbates in front of another person.

The maximum penalty for sexual assault is 10 years in prison unless there is aggravation—a weapon is used or more than one person is involved in the assault—in which case the maximum penalty is 14 years in prison.

Rape

Rape is the most serious form of sexual assault, forcing someone to have sexual intercourse without their consent. However, forcing someone to perform oral sex also constitutes rape as does digital penetration and inserting any object into the vagina or anus of another person without their consent.

Rape is considered a very serious offence and carries a maximum sentence of life imprisonment.

For sexual intercourse not to be rape, consent must be freely and voluntarily given by a person with the cognitive capacity to do so. Therefore if a person has sexual intercourse while the other person is asleep, unconscious or their cognitive capacity is impaired by drugs or alcohol, it still constitutes rape.

Attention

Sexual intercourse with anyone under the age of 12 is rape as a child is not capable of giving consent. Someone who has sexual intercourse with a child may also be charged with other serious sexual offences such as indecent treatment of a child, unlawful carnal knowledge and maintaining a sexual relationship with a child.

Sharing intimate images without consent

It is a crime in Queensland to share an intimate image of someone without their consent in a way that could reasonably cause distress to the other person. A person under 16 cannot legally give consent.

It is also illegal to threaten to share an intimate image without the pictured person’s consent. This applies to threats made to the person in the image, or threats to anyone else. This is the case even if the image doesn’t exist.

Further reading

See the Queensland government website for information on sharing intimate images without consent.

Intimate image

An intimate image is defined in law, and might include a photograph or video of a person:

  • nude
  • with their genitals or backside showing (whether bare or covered by underwear)
  • with their bare breasts showing (if they are female or, if transgender or intersex, if they identify as female)
  • engaged in an intimate sexual activity not normally done in public.
  • digitally altered images are also included in the definition of an intimate image. For example:
    • a person’s face digitally added to a pornographic or sexualised image
    • a nude or partially nude person with their genitals or breasts digitally covered (e.g. with an emoji).

This is not a complete list of what constitutes an intimate image.

Consent

It doesn’t matter if an image was originally taken with consent. If someone provided an image or gave someone permission to see the image, it does not mean they have agreed to anyone else seeing it.

If someone sends a person an intimate image, that person should not show it to anyone else without their willing consent.

Attention

Attention

If the child in the image is under 16, the law says it is never ok to share that image. Even if the person has told another person that it is it’s to share, Queensland laws say a person under 16 cannot consent to an intimate image of them being shared.

Child exploitation material

There are a range of offences under both Queensland and Commonwealth legislation relating to the access, possession, distribution and making of child exploitation material.

In Queensland, child exploitation material (CEM) is material likely to cause offence to a reasonable adult that describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years:

  • in a sexual context, including engaging in a sexual activity
  • in an offensive or demeaning context
  • being subjected to abuse, cruelty or torture.

Under Commonwealth legislation, there are also similar definitions relating to child abuse material and child pornography material (Queensland Sentencing and Advisory Council, 2017).

The key distinction between the Queensland and Commonwealth legislative provisions arises from the Commonwealth’s responsibility for internet, telecommunications, postal services and border protection versus the states’ constitutional authority over criminal matters. Queensland offences relate broadly to the actual possession, distribution, or making of CEM, while the Commonwealth offences relate to the use of either a carriage service (such as the internet or telephone) or the postal service, in relation to such offending (Queensland Sentencing and Advisory Council, 2017).

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