Recording an intimate image of another person without their consent is a criminal offence in New South Wales and may attract significant penalties under s91P of the Crimes Act 1900 (NSW) (‘the Act’).
Part 3, Division 15C of ‘the Act’ was enacted by the Crimes Amendment (Intimate Images) Act 2017 to address image-based abuse through offences relating to the non-consensual recording, distribution and threatened distribution of intimate images.
Section 91P creates the offence of recording an intimate image of another person without consent. To establish the offence, the prosecution must prove beyond reasonable doubt that the accused:
- intentionally recorded an intimate image of another person;
- did so without that person’s consent; and
- knew that the person did not consent, or was reckless as to whether the person consented.
What is an Intimate Image?
An image will constitute intimate image material where it depicts a person in circumstances in which a reasonable person would expect to be afforded privacy.
Under s 91N of the Act, an intimate image is defined as:
- an image of a person’s private parts, or of a person engaged in a private act;
- an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act; or
- an image of a simulated person’s private parts, or of a simulated person engaged in a private act.
A private act includes being in a state of undress, using the toilet, showering or bathing, engaging in a sexual act not ordinarily done in public, or a similar activity.
The Importance of Consent
Under s 91O of the Act, consent must be freely and voluntarily given for the particular recording, creation, alteration or distribution of intimate material. Consent is not valid where a person is under 16 years of age, lacks capacity, is unconscious or asleep, is unlawfully detained, or agrees because of threats or intimidation. Further, consent to one recording or distribution does not necessarily constitute consent to future recordings, distributions or other uses of the material.
Maximum Penalty
The maximum penalty for an offence under s 91P is 100 penalty units, imprisonment for three years, or both.
Exceptions
Section 91T of the Act provides several exceptions to the offence. A person will not commit an offence under s 91P where the conduct was undertaken for a genuine medical or scientific purpose, by a law enforcement officer for a genuine law enforcement purpose, or where the conduct was required by a court or was reasonably necessary for the purposes of legal proceedings. A further exception applies where a reasonable person would consider the conduct acceptable in the circumstances.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
