See section 77A of Prostitution Act 1999 (as amended in December 2003)and section 229E(5)and 229D of the Criminal Code

These laws are being updated in 2011. Link here to see the 2011 Update from Respect Inc.

Since 2003 it is illegal (ie a criminal offence) for sex workers to provide any commercial sex service without a condom. People have also been harassed and charged for offering it, even though it does not specifically state in the law that it is illegal to offer sex without a condom. N.B. the laws are about to change on this issue. Link to full review of the new legislation.

Evidence is gained by police through entrapment usually over the phone. Also some sex workers have been harassed by police as a result of rumours about providing services without a condom. So it is unclear as to what evidence the police actually try to gather before attempting to charge a person.

Prophylactics (ie Condoms, Dams, gloves, etc) must be used by sex workers & clients during "sexual intercourse or oral sex". The description of sexual intercourse includes all penetration "by any part of another person" or "an object".

Anything which stops the Condom or Dam from being effective (such as the client ripping or moving it) is illegal. Management and Licensees of brothels must support the use of condoms and dams & must not discourage the use.

What this means for sex workers

Since December 2003 it has been illegal in Queensland to provide any service to a client without using the appropriate prophylactic. The law states that prophylactics must be used during sex and oral (giving and recieving).

This means: using condoms for penetrative sex, using condoms for giving head and dams while recieving oral sex. Hand relief is not affected.

Any penetration could be included though (for example gloves/finger cots for penetration by fingers or hands and condoms on dildos, vibrators and strap ons.)

Sex workers have also be harassed for offering to provide sex without a condom. Police pose as clients and harrass workers over the phone to gain evidence, or act upon rumour. This is known as entrapment. The legal term in Queensland is deceptive practice.

What this means for Clients

Clients can also be subject to legal penalty if they recieve full service from a sex worker without a condom, head without a condom, or give oral without latex/dam. Dildos, vibrators and strap-ons must also have condoms on them, and workers should use finger cots and gloves when penetrating clients. Hand relief is not affected.

Clients interfering with or damaging condoms & dams

Clients must not do anything to get in the way of a condoms & dams being used, or damage a comdom or dam during a service.

This could include: pulling the condom off during a service, moving the dental dam while oral is happening or deliberately damaging the condom (such as ripping it). If safe sex gear is damaged (it breaks or moves etc) and the client knows or could reasonably be expected to know that this has happened, they must not continue the service. The client should stop the service and tell the worker so that a new condom can be used or the dam replaced or adjusted.

Management must promote condom and dam usage, any discouragement is illegal

The new law states that management must take steps to make sure no services are given or recieved without the right safe sex gear.Management and Licensees of brothels must support the use of condoms and dams & must not discourage the use.

Can I be busted for offering oral sex without a condom?

The police are busting for this offence, however if you plead not guilty you will be likely to get off. The police use entrapment (or deceptive practice) to gain evidence by pretending to be a client and calling you on the phone and asking for oral sex without a condom. In 2004 a sex worker challenged this charge in court and the case was dismissed, because the police had no evidence of the sex worker actually doing the service without a condom.

Definitions and Charges

Definition of sexual intercourse:sexual intercourse includes either or both of the following activities—

(a) the penetration, to any extent, of the vagina, vulva or anus of a person by any part of the body of another person;

(b) the penetration, to any extent, of the vagina, vulva or anus of a person, carried out by another person using an object.

Definition of oral sex: oral sex means the bringing into contact of any part of the genitalia or anus of a person with any part of the mouth of another person.

Definition of interfere with: to interfere with means to misuse or damage.

Definition of Prophylactic: a prophylactic is a devise which stops the transfer or bodily fluids and includes condoms, dams, fingercots, gloves and latex.

(1) A sex worker must not provide services involving sexual intercourse or oral sex unless a prophylactic is used. Maximum penalty 100 penalty units.

(2) A client must not obtain a service involving sexual intercourse or oral sex unless a prophylactic is used. Maximum penalty 100 penalty units.

(3) A client must not interfere with the usefulness of a prophylactic, and must not continue a service if the prophylactic is damaged. Maximum penalty 100 penalty units.

(4) The licensee or manager must take reasonable steps to ensure that prophylactics are used on their premises. Maximum penalty 120 penalty units.

(5) The licensee or manager must not discourage the use of prophylactics. Maximum penalty 120 penalty units.

**1 penalty unit = approx. $75 dollars

Further Information for Consideration

The Crime and Misconduct Commission report after their second investigation into the sex industry (2004) states on page 63 (please note that Scarlet Alliance does not endorse the following position of the CMC, PLA and Qld Police):

On a related issue, under section 77(A)(1) and (2) of the Act, sex workers and their clients are required not to engage in a sexual act without a prophylactic. The PLA has been concerned that there may be problems with enforcing this provision. For example, it was the PLA’s belief that the Act only makes it an offence when sexual intercourse or oral sex actually occurs without a prophylactic; it does not make it an offence for sex workers or clients to merely have the intent (or to make an offer) to have sex without a prophylactic. The police agreed with the PLA’s concerns.

In October 2004 this issue was tested before the courts. In that matter, a (male) sex worker offered to provide oral sex to a customer without a prophylactic. The sex worker was prosecuted under section 77A of the Prostitution Act. The magistrate ruled that an ‘offer’ was not the same as ‘providing’ and the matter was dismissed. While it is uncertain whether or not an appeal will be made by the QPS, it seems for the moment that on one view ‘offering’ to provide sex without a condom is not behaviour caught within section 77A.

The Prostitution Act requires clarification in this respect and the CMC recommends changes to the Act accordingly.

CMC Recommendation 6:

*That section 77A of the Prostitution Act be modified to ensure that proscribed behaviour includes ‘an offer’ to have sex without a prophylactic as well as the offence of actual sexual intercourse or oral sex without a prophylactic*

Updated with many thanks to SSPAN QLD, 16 January 2006

Updated with many thanks to Respect Inc, 4 Oct 2011