Distribute intimate image without consent (revenge porn) laws NSW

Revenge Porn and intimate image abuse defence lawyers

Distribute intimate image without consent is a serious criminal offence with a maximum sentence of 3 years imprisonment. When people think of this offence, they will typically think of ‘revenge porn’, however, the types of conduct that the offence captures are significantly wider than most people think. For example, if you show a friend, in person, a photograph of your girlfriend nude without her consent, you will have committed this offence. In other words, the image doesn’t need to be posted on the internet or sent over your phone, the offence can be committed by simply showing someone something ‘intimate’ that you did not have consent to show them. In other words, showing an image or video on your phone to brag to mates without the

The government introduced this legislation without properly informing the public of its effect meaning that many people are being charged with offences that they do not realise they have committed until it’s too late.

Revenge Porn

Most people know that if they post intimate images or videos of another person on the internet, without that person’s consent, they will have committed an offence. Less people realise that sending intimate images or videos of another person, without that person’s consent, to a friend, is an offence. Fewer people still are aware that simply showing intimate images or videos of another person, without that person’s consent, to a friend on your own phone is an offence. It is even possible to commit the offence where you send someone an intimate photo of themselves if they don’t consent to you sending them the intimate image. This includes where they consented to you taking the image in the first place.

Depending on the type of conduct, the courts will take different views on the seriousness of the offence. The most serious kind of offending of this nature is usually “revenge porn”.  This “revenge porn” term stems from cases involving the sharing of images and videos online to shame the person or people in them, or to the friends and family of the people in the images to humiliate them.

We have been seeing a lot of cases involving the sharing of intimate images without consent and other image abuse offences. Our criminal lawyers are experts at getting the best possible results for clients facing image abuse charges, whether it’s not guilty verdicts or lenient sentences including section 10’s where no conviction is recorded and avoiding a gaol sentence where it is otherwise likely.

Sharing intimate images without consent NSW

The Crimes Amendment (Intimate Images) Act 2017, amended the Crimes Act 1900, to create several image abuse offences including the non-consensual recording and distribution of intimate images in New South Wales.  The laws were introduced following a report by the Legislative Council Standing Committee on Law and Justice in “Remedies for the serious invasion of privacy in New South Wales”.  The report highlighted a high rate of non-consensual sharing of intimate images.

Section 91Q deals with the offence of distribute intimate image without consent.  The Act makes it an offence to intentionally distribute an intimate image of another person without their permission.  An intimate image is an image that includes a person’s private parts or where they are in a private act.  If found guilty of sharing the image or video by intentionally sending, supplying, exhibiting, or transmitting it in person or via digital or other means of communication, you could face imprisonment of 3 years, a fine or both.

Intimate images legislation NSW

The legislation states that;

“ (1)  A person who intentionally distributes an intimate image of another person—

(a)  without the consent of the person, and

(b)  knowing the person did not consent to the distribution or being reckless as to whether the person consented to the distribution,

is guilty of an offence.”

What classifies an image as being intimate?

An intimate image means an image showing or altered to appear to be showing, a person’s private parts or a person engaged in a private act.

An intimate image is defined in the Crimes Act 1900, section 91N as;

  1. 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
  2. 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.

The Act defines what is meant by ‘private parts’ as

  1. a person’s genital area or anal area, whether bare or covered by underwear, or
  2. the breasts of a female person, or transgender or intersex person identifying as female.

‘Engaged in a private act’ is defined in the Act as

  1. in a state of undress,
  2. using the toilet, showering, or bathing,
  3. engaged in a sexual act of a kind not ordinarily done in public, or
  4. any other similar activity.

Definition of “distribute” in intimate image offences

The act clarifies the meaning of “distribute” for intimate image offences in section 91N as the following.

  1. send, supply, exhibit, transmit or communicate to another person, or
  2. make available for viewing or access by another person, whether in person or by electronic, digital or any other means.

A person may be regarded as having distributed an image to another person whether or not the other person views or accesses the image.”

Definition of “consent” in intimate image offences

Consent is defined as a person freely and voluntarily agreeing to an act.  In this instance, it involves giving permission freely and voluntarily for an intimate image or video to be shared with others.

The same definition of consent applies here as it does for sexual assault offences.  That is that a person cannot consent if they are under the age of 16 years or if they do not have the ‘capacity to consent’.  A person is considered to not have the capacity to consent if they are unconscious, asleep, intoxicated, or if they are being threatened with force or terror to make them consent.

For this offence, it is important to note that consent given on one occasion does not necessarily mean consent is given to distribute any other image on another occasion.   Consent to distribute an image or video to one person also doesn’t mean that consent is given to distribute it to any other person or in any other way other than what permission was granted.

Prosecution of a person under the age of sixteen for revenge porn

The legislation includes a provision that limits the ability of the police to prosecute a person under the age of 16.  The aim is to avoid targeting and criminalising young people and the reckless behaviour of naïve teenagers and given that young people share more intimate images than adults.

The provision is that the prosecution of a person under the age of 16 can only be possible with the consent of the Director of Public Prosecutions (DPP).  Only in severe cases of intimate image offences will the DPP likely take action to prosecute.

Penalties for distribute intimate image without consent

If you are found guilty of non-consensual distribution of an intimate image or video, you could face a maximum sentence of 3 years imprisonment. However, such a penalty would typically be reserved for the worse examples of this kind of offending by people with records of doing the same thing before.

There are several alternate penalties available to the court for Distribute Intimate Image Without Consent that a good defence lawyer will fight for.  This includes avoiding a conviction and criminal record with a section 10.   The alternate penalties are listed as follows

Where a court sentences someone for this offence, it may also order the offender to take reasonable actions to ‘remove, retract, recover, delete or destroy’ any images or videos they have distributed.  If they fail to do so, they could face a maximum penalty of 2 years imprisonment, a fine, or both.

Australian Criminal Law Group is home to expert criminal defence lawyers for getting Section 10 No convictions or other more lenient penalties for intimate image offences.   Give us a call to discuss your case in a first free consult.

How should I plead to sharing images without consent?

There are two ways that you can plead to intimate image offences being guilty or not guilty.

To be found guilty of distributing an intimate image without consent, the prosecution must prove beyond reasonable doubt that:

  1. You intentionally distributed an intimate image of another person,
  2. The other person did not consent to the image being distributed, and
  3. You knew the other person did not consent to the distribution or were reckless as to whether they consented.

It is always best to seek legal advice before deciding how to plead.  An experienced criminal lawyer will help you decide the best course of action based on the defences available to you and the specific circumstances of the offence and charges brought against you.

Generally, if you are guilty and the prosecution can prove your guilt, a guilty plea is best.  Pleading guilty early in your case will normally result in a more favourable sentence.  That’s because, by pleading guilty, you are demonstrating to the court that you accept you have done the wrong thing and that you are remorseful for your actions.

How to beat a charge of Distribute Intimate Image Without Consent

You will be found not guilty of distribution of an intimate image or video if the prosecution cannot prove beyond reasonable grounds that it was you who distributed the intimate image or video of another person, that you intentionally distributed it, and that the other person did not consent and that you knew they didn’t consent.

It is, therefore, a defence to this offence if you believed, on reasonable grounds, that there was consent or that you did not know and could not reasonably be expected to know that the other person had not consented to the image or video being distributed.

The Crimes Act 1900 also includes a list of exceptions in 91T for this offence. These are listed as following

 Exceptions

(1)  A person does not commit an offence against section 91P or 91Q if—

(a)  the conduct alleged to constitute the offence was done for a genuine medical or scientific purpose, or

(b)  the conduct alleged to constitute the offence was done by a law enforcement officer for a genuine law enforcement purpose, or

(c)  the conduct alleged to constitute the offence was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings, or

(d)  a reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following (to the extent relevant)—

(i)  the nature and content of the image,

(ii)  the circumstances in which the image was recorded or distributed,

(iii)  the age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image,

(iv)  the degree to which the accused person’s actions affect the privacy of the person depicted in the image,

(v)  the relationship between the accused person and the person depicted in the image.

What to do if charged with the non-consensual distribution of an intimate image?

Get in contact with Australian Criminal Law Group immediately if you have been charged with the non-consensual distribution of an intimate image or video.  A good defence lawyer could be the difference between imprisonment or walking away with a section 10 and avoiding a criminal record.

Our defence lawyers have experience in representing cases of distribute intimate image without consent and we fight to get the best results in court every time.

To discuss your intimate image charge, call the Australian Criminal Law Group at our Sydney, Parramatta, or Blacktown office on 02 8815 8167 or make a website inquiry today.

 

Sources

The Crimes Act 1900 No 40 Part 3, Division 15C, the current version for 1 April 2022 to date (accessed 3 May 2022 at 9:02) https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040

Crimes Amendment (Intimate Images) Act 2017 No 29 [NSW] https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2017-029

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This information is intended as a general guide to law only.  It should not be relied on as legal advice and it is recommended that you speak with a qualified lawyer about your situation.

Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, the Australian Criminal Law Group makes no warranties or representations as to its accuracy.

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