Record intimate image without consent defence lawyers

Record intimate image without consent offence and revenge porn laws NSW

Recording an intimate image without consent is now a crime in NSW. The maximum penalty if found guilty of this offence is 3 years imprisonment or $11,000 fine, or both.

The offence of Recording intimate image without consent is not limited to photographs of strangers from hidden cameras in toilet blocks or sneakily taken upskirt pictures. The most common scenarios involving this charge actually involve lovers, girlfriends and wives, past and present, as well as friends complaining of photographs and videos being taken of them without their consent. On occasion, there are complaints to police from people who have consented, who then turn around and say they have not, out of fear a photo may be distributed, thereby making a false allegation.

Our defence lawyers are experts at beating charges of recording intimate images without consent and other intimate image offences.  When clients chose to plead guilty, we get the best possible outcomes for them every time.  This includes section 10 non-convictions meaning no criminal record or imprisonment, even if found guilty of the offence.

If you have been charged with an intimate image offence, get in contact with Australian Criminal Law Group on 02 8815 8167 or email us via the above form.

What are the laws around record intimate image without consent in NSW?

The NSW government recently introduced new image abuse laws as part of The Crimes Amendment (Intimate Images) Act 2017.  These included offences relating to the recording and distribution of intimate images without consent.

The new legislation was enacted following a report which highlighted the prevalence of image-based abuse and ‘revenge porn’ in Australia.   The Legislative Council Standing Committee on Law and Justice in “Remedies for the serious invasion of privacy in New South Wales” report found that one in five Australians have had an intimate image recorded and/or shared without their consent.

Unfortunately, when the new legislation came about, the government failed to properly inform 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. For example, photographing or recording another person, such as a partner or a friend in their underwear, partially dressed or naked, without any malice or where they have done so previously with consent.

Recording an intimate image without consent

Recording intimate images without consent is now an offence that is dealt with in section 91P of the Crimes Act 1900.

The Crimes Act states that

 (1) A person who intentionally records an intimate image of another person–

(a) without the consent of the person, and

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

is guilty of an offence.

Maximum penalty–100 penalty units or imprisonment for 3 years, or both.

What is an intimate image?

An intimate image is defined in the Crimes Act, section 91N 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 expect to be afforded privacy.  This includes images that have been altered to appear to show a person’s private parts or a person engaged in a private act.

Private parts include genitals, anus, or breasts.  They can be covered, bare or in underwear.

A private act is defined as being in a state of undress, using the toilet, showering, or bathing, engaged in a sexual act not ordinarily done in public, or other like activity.

Definition of Recording an image

Recording an image means to record, take, or capture an image by any means.

This could be with a smartphone, camera, video recorder, computer, webcam, or any other means of capturing or recording an image or video.

Consent to recording intimate images

Consent is a person freely and voluntarily permitting or agreeing to an act.

Where consent may be given on one occasion, it does not mean consent is given on another.  That is, while consent may have been given for a specific photo to be taken or an act to be recorded at a given point in time, that does not give blanket permission for similar or other photographs or recordings to be taken of that person.

Additionally, like consent in relation to sexual assault offences, a person cannot consent to have an intimate image recorded if they are under the age of 16 years, or they do not have the ‘capacity to consent.  A person does not have the capacity to consent if they are unconscious, asleep, intoxicated or being threatened with force or terror to make them consent.

Prosecution of a person under the age of sixteen for recording intimate images

The consent of the Director of Public Prosecutions (DPP) must be given to prosecuting a person under the age of 16 for the offence of recording an intimate image without consent.  This is only likely for severe cases of intimate image abuse.

The provision for the prosecution of persons under the age of 16 was included in the legislation to avoid criminalising young people for common behaviour associated with sexting.  Sexting, including the recording and distribution of intimate images, is more popular among young people than adults.  The provision limits the ability of the police to prosecute a person under the age of 16 for this offence.

Penalties for Record Intimate Image without Consent

If you are found guilty of non-consensual recording of an intimate image or video, you could face a maximum sentence of 3 years imprisonment. However, harsh penalties and imprisonment are typically reserved for the worse offences and for people with records of doing the same thing before.

Alternate penalties for recording intimate images without consent include;

  • Conditional Release Order
  • Community Corrections Order
  • Intensive Corrections Orders
  • Fines
  • Section 10: No convictions

A good criminal defence lawyer should be able to fight for your case to get a more favourable sentence for you and keep you out of prison.

Pleading ‘not guilty’ to record intimate images without consent

You will be found not guilty of the offence of recording intimate images without consent if the prosecution cannot prove beyond a reasonable doubt that

  • You recorded an intimate image of another person
  • You intended to record the image or video
  • The other person didn’t consent to the recording of the image
  • You knew the other person didn’t consent or you were reckless as to whether they consented.

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

 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.

To defend against charges for this offence, we recommend contacting an experienced criminal defence lawyer.

Call us on 02 8815 8167 if you’ve been charged with recording intimate images without consent.  Australian Criminal Law Group have experience in defending charges of recording intimate images without consent.  We fight to beat charges for our clients and we get the best results in court every time.

Pleading guilty to the non-consensual recording of imitate images

If you are guilty of non-consensual recording of intimate images and the prosecution can prove your guilt, then it is best to plead guilty to the charges against you.  The earlier in your case that you plead guilty, the more favourably the court will view the matter.  This means you will be likely to get a more lenient sentence.

For guilty pleas, we recommend working with an experienced defence lawyer.  An experienced lawyer will be able to help navigate the complex legal system as well as build a case for a more lenient sentence.     Without a good criminal defence lawyer on your side, you could be facing up to 3 years imprisonment for this offence.

Australian Criminal Law Group defence lawyers are experts at getting the best results in court every time for guilty pleas.  This includes avoiding conviction and criminal records with section 10 non-convictions, as well as getting other more favourable penalties such as conditional release orders, community corrections orders, intensive corrections orders, and fines.

Australian Criminal Law Group

We are experienced in dealing with intimate image offences including charges of record intimate image without consent.  Our defence lawyers fight to help clients beat charges against them or, where clients choose to enter a guilty plea, get the best possible outcomes for them in court.

Australian Criminal Law Group has offices in Sydney, Parramatta, and Blacktown.  We offer free first consultations and fixed fees for non-complex cases.

Give us a call on 02 8815 8167 or send us a website enquiry if you’ve been charged with an intimate image offence.

 

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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