Due to the many technological advances of the modern era, the dangers of people sharing intimate images of others without their consent have continued to grow. There are increasing concerns about the possibility of embarrassment and humiliation as a result of what is sometimes labelled “revenge porn”. In response, the NSW Parliament have recently passed the Crimes Amendment (Intimate Images) Bill 2017, introducing three new “personal violence” offences prohibiting the recording and distribution of intimate images without consent.
What is an intimate image?
An intimate image is any image of a person’s private parts, or of a person engaged in a private act, where there is a reasonable expectation of privacy. The definition has also been ‘modernised’ to include any image altered to appear to show a person’s private parts or a person engaged in a private act.
The definition of private parts now includes a person’s genital and anal area, whether bare or covered by underwear, as well as the breasts of a female, transgender or intersex person identifying as a female. To be engaged in a private act, a person may be in a state of undress, using the toilet, showering or bathing, engaging in a sexual act ordinarily not done publicly or any other like activity.
What is consent?
In regards to the new offences, consent must be freely and voluntarily given to the recording or distribution, whether express or implied. However, if a person has consented once, they will not be taken automatically as consenting on another occasion. Similarly, they must consent to the distribution of an image to the receiving person in a particular way. Furthermore, if a person distributes an image of themselves, they will not automatically be regarded as consenting to any other distribution. These provisions aim to entitle people to make decisions about their own privacy.
There are several established categories of people who may not consent in any way, though they do not limit circumstances in which consent is not found. People under 16 years of age or without capacity to consent (e.g. cognitive incapacity) cannot consent. This does not prevent children from being perpetrators, though special approval is needed from the Director of Public Prosecutions before prosecution to avoid criminalising activity between children. Consent is not found if opportunity is not given due to unconsciousness or sleep. Finally, consent due to threats of force or terror (whether in that or any other person) or unlawful detainment is negated.
What are the new offences?
The new offences now prohibit the recording or distribution of intimate images without consent, as well as the threatening of recording or distributing intimate images without consent. A summary offence (lower court offence) has also been inserted for contraventions of court orders made to remove an intimate image.
Section 91P – Record Intimate Image Without Consent
The new section 91P prohibits people from intentionally recording intimate images of other people without their consent, with either knowledge or recklessness as to non-consent. Recording includes both photographs and videos.
Although there are other offences already available for filming intimate images without consent (sections 91K and 91L of the Crimes Act 1900), they are limited to prohibiting the filming of intimate images for sexual arousal or gratification. Therefore, section 91P intends to include a wider range of motivations including revenge, embarrassment, humiliation and control in abusive relationships.
The offence carries a maximum penalty of 100 penalty units or imprisonment for 3 years, or both.
Section 91Q – Distribute Intimate Image Without Consent
Like section 91P, the new section 91Q prohibits people from intentionally distributing intimate images of other people without their consent, also with either knowledge or recklessness as to non-consent. Distribution is defined broadly, including to send, supply, exhibit, transmit or communicate to another person as well as making viewing or access available. Distribution may occur whether another person has viewed or accessed the image.
The offence carries a maximum penalty of 100 penalty units or imprisonment for 3 years, or both.
Section 91R – Threaten To Record Or Distribute Intimate Image
The new section 91R prevents any threat being used to record or distribute intimate images of other people without their consent. The threat may be in any form of conduct, whether explicit or implicit and conditional or unconditional. The offence requires that a person intends to cause a fear of the threat being carried out, regardless of whether an image exists. However, the prosecution do not have to prove that the person actually feared the threat being carried out.
The offence carries a maximum penalty of 100 penalty units or imprisonment for 3 years, or both.
Section 91S – Court May Order Rectification
Under the new section 91S, any court that finds a person guilty of recording or distributing intimate images without consent now have the power to order them to take reasonable actions to “remove, retract, recover, delete or destroy” any intimate image specified. The section also allows courts to impose a maximum of 50 penalty units or imprisonment for 2 years on those who do not comply, or both.
This is the only summary offence, meaning that you cannot be tried by jury.
What are some defences?
There are some exceptions to the offences of recording or distribution. For example, if the conduct was done for a genuine medical, scientific or law enforcement (by a law enforcement officer) purpose, an offence will not be committed. Furthermore, an offence will not be committed if the conduct was required by a court or reasonably necessary for legal proceedings.
The offence will also not criminalise any activities that a reasonable person would consider as acceptable conduct. The courts would look at the image’s nature and content, the circumstances in which the image was recorded or distributed, the depicted person’s age, intellectual capacity, vulnerability or other relevant circumstances, the degree which the depicted person’s privacy is affected and the relationship between the accused and depicted person.
How can Nyman Gibson Miralis assist you?
Due to broad definitions of what constitutes an offence, legislation is moving in the direction of making it easier for the accused to be convicted. If you require legal assistance, contact one of our expert criminal defence lawyers to arrange a consultation.
