Offences of revenge porn or unlawfully capturing/distributing intimate images are part of a relatively new category of criminal offences in most Australian jurisdictions. Almost all forms of these types of offences are considered serious and can often result in the imposition of custodial sentences.
Whilst colloquially referred to as ‘revenge porn’ there are a range of offences that reflect the recording/capturing intimate videos or images of another person, whether the motivation is out of revenge or some other unlawful purpose.
Under sections 91P and 91Q of the NSW Crimes Act it is an offence to intentionally record or distribute an intimate image of another person without their consent. The offences carry a maximum penalty of imprisonment for 3 years and/or a fine of $11,000.
“Intimate image” includes videos or still pictures capturing someone naked, engaged in a sexual act or in other private acts such as showering. It can also involve images that are partly altered with changed faces or bodies.
The police/prosecution must prove that an offender either knew the person captured in the image consented or that they were reckless by knowing there was a risk that person did not consent but recorded the image anyway.
These offences would not include any conduct that a reasonable person would consider acceptable, taking account of the nature and circumstances of the image, the relationship between the people involved and the degree to which the captured person’s privacy is or is not affected.
The act of threatening to record or distribute an intimate image is also an offence under section 91R Crimes Act (NSW) if it is done without the captured person’s consent and the accused intends to cause that person to fear that this threat will actually be carried out. There are a broad range of “threats” that could be included in this offence including conditional or unconditional threats, and explicit or implicit threats. Even if the image does not actually exist a person can be convicted under this provision if claiming they have an image that will/may be distributed. It is also not necessary to prove that the victim actually believed or feared the threat would be carried out.
There is a similar offence provision which applies in Canberra of threatening to capture or distribute an intimate image under section 73E of the Crimes Act 1900 (ACT). This offence also requires that an accused person intends the captured person to fear that their threat would actually be carried out.
Images that are captured by law enforcement or security officials or otherwise for legitimate scientific, medical or educational purposes generally would not fall under any of the offence provisions.
Given the range of technical elements in these offences, different potential defences available and risk of a custodial sentence, it is important to engage an experienced criminal defence lawyer from Hugo Law Group if ever facing one of these offences.
Adrian McKenna, Partner