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The law on observing, filming and distributing intimate images in NSW

The law on observing, filming and distributing intimate images in NSW

Isolation can be lonely, so it’s only natural that many of us will be reaching out in intimate ways via text and video-calls whilst we are cooped up indoors.

But ‘sexting’ in the time of COVID-19 comes with certain risks that your intimate images might be shared more widely than intended.

Here’s what the laws say about image-based abuse.

Image-based abuse

Image-based sexual abuse is defined as “the non-consensual creation, distribution or threats to distribute nude or sexual images (photos or videos) of a person”. It’s also known as “non-consensual pornography” or “revenge porn”.

According to researchers, about 1 in 5 Australians have been victims of image-based abuse.

Every State and Territory (except for Tasmania) now has a specific criminal offence for image-based abuse including NSWthe ACTSouth AustraliaWestern AustraliaVictoriaQueensland and the Northern TerritoryFederal offences relating to the use of a carriage service to harass or cause offence could also apply.

Moreover, the Enhancing Online Safety Act 2015 (Cth) established a civil penalty scheme empowering the eSafety Commissioner to remove images online and, in some cases, take action against the person who shared, or threatened to share, an intimate image without consent.

The law in New South Wales

Under the Crimes Act 1900 it is in an offence to observe, film or distribute intimate images without consent in New South Wales.

In addition to existing criminal offences of peeping or prying and voyeurism, the law in our state was recently changed to make it a specific offence to:

The maximum penalty for each of these offences is three years in prison and/or a fine of $11,000.

An ‘intimate image’ is defined as:

  • An image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
  • An image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
A ‘private act’ includes depictions of someone in a state of undress, using the toilet, showering, bathing, engaged in a sexual act or engaged in any other like activity.

Consent to the recording or distribution of an intimate image requires “free and voluntary agreement”. Consent cannot have occurred if someone does not have capacity or complies because of threats.

It is made very explicit under the law that consent to record for, or distribute an image to, a particular person does not mean consent for that image to be shared to others.

For defendants

If you have been accused of image-based abused, it is important to be aware that the prosecution must prove beyond reasonable doubt that you are actually responsible before you can be found guilty.

If the prosecution is unable to do so, you are entitled to a finding of not guilty.

For recording an intimate image without consent under section 91P, the prosecution must prove that:

  1. You intentionally recorded an intimate image of another person,
  2. You did so without the other person’s consent, and
  3. You knew the other person did not consent, or were reckless as to whether or not they were consenting.
For distributing an intimate image without consent under section 91Q, the prosecution must t prove that:

  1. You intentionally distributed an intimate image of another person,
  2. You did so without the other person’s consent, and
  3. You knew the other person did not consent to the distribution, or were reckless as to whether or not they were consenting.
And for threatening to record or distribute an intimate image without consent under section 91R, the prosecution must prove that:

  1. You threatened to record or distribute an intimate image of another person,
  2. You did so without the other person’s consent, and
  3. By doing so, you intended to cause the person to fear the threat would be carried out.
The section makes clear that the threat can be made by any conduct, whether explicit or implicit, conditional or unconditional, the image does not have to actually exist and the prosecution does not need to prove that the threatened person feared the threat would be carried out.

Defences

In addition to the prosecution having to prove each ‘element’ of the offence, it must prove beyond reasonable doubt that a legal defence such as duress, necessity or self-defence is unavailable where some evidence of the defence is raised.

For complainants

If you feel that you have been a victim of image-based abuse, you can report the matter to your local police.

Another option is to report the matter to the eSafety Commissioner, who can assist in issuing take down notices on websites containing your image as well as enforcing civil penalties against those who are responsible.

The eSafety Commissioner also provides further advice on removing your image from social media or a website, and it is important to note that under section 91S of the Crimes Act 1900a court that finds a person guilty of an offence against section 91P or 91Q may order the person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person’.

Failure to take these steps, without a reasonable excuse, can result in a maximum penalty of up to two years in prison and/or a fine of $5,500.

Written by Jarryd Bartle and Ugur Nedim. Republished with permission of Sydney Criminal Lawyers.