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Distributing an intimate image without consent

sexual offences

The offence of Distributing an intimate image without consent is found in section 91Q of the Crimes Act 1900 (NSW) which deems a person guilty if they intentionally distribute an intimate image of another person without their consent, knowing that the other person was not consenting.

Distributing intimate images without consent constitutes a severe criminal offense, carrying a maximum penalty of 3 years imprisonment. While commonly associated with ‘revenge porn,’ this offense encompasses a broader range of behaviors than typically perceived. For instance, showing a friend a nude photograph of your partner in person, without their consent, qualifies as a violation. Importantly, the offense extends beyond online platforms or digital communication; it includes any unauthorized sharing of intimate material. Unfortunately, the government’s implementation of this legislation lacked sufficient public awareness, leading many individuals to face charges without realizing their actions were unlawful until it was too late.

What is the Offence?

Distributing an Intimate Image Without Consent constitutes an offence under section 91Q of the Crimes Act 1900, carrying a maximum penalty of 3 years in prison.

91Q Distribute intimate image without consent

(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.

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

(2) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

To establish this offence, the prosecution must demonstrate beyond reasonable doubt that:

  1. You intentionally distributed an intimate image of another person,
  2. Without that person’s consent,
  3. While knowing the other person did not consent, or being reckless as to whether they were consenting.

An ‘intimate image’ is defined as:

  • A person’s private parts, or a person engaged in a private act,
  • An image altered to appear to show a person’s private parts, or
  • The person engaged in a private act, where privacy would reasonably be expected.

‘Private Parts’ encompass:

  • The genital or anal area, whether exposed or covered by underwear,
  • The breasts of a female, or transgender or intersex person identifying as female.

A ‘Private Act’ includes:

  • Undressing,
  • Using the toilet, showering, or bathing,
  • Engaging in a sexual act not typically done in public, or
  • Similar activities.

What is Consent?

In the context of intimate image offenses, “consent” refers to the voluntary and uncoerced agreement of a person to a particular action. Specifically, it involves the willing permission for the sharing of an intimate image or video with others.

The definition of consent mirrors that used in cases of sexual assault. It stipulates that individuals under the age of 16, or those lacking the mental capacity to provide consent, cannot legally do so. Lack of capacity may stem from being unconscious, asleep, intoxicated, or coerced through force or intimidation.

Importantly, consent granted on one occasion does not automatically extend to future instances of image distribution. Similarly, consent to share an image or video with one person does not imply permission to distribute it to others or through alternative means beyond the initially agreed-upon terms.

Pleading Not Guilty?

Exceptions to these offences are detailed in section 91T of the Crimes Act 1900. A person is not guilty if the conduct falls under specific circumstances, such as:

  • Serving a genuine medical or scientific purpose,
  • Conducted by a law enforcement officer for legitimate law enforcement purposes, or
  • Mandated by a court or necessary for legal proceedings.

Additionally, a person may not be deemed guilty if a reasonable person would find the conduct acceptable, considering factors such as:

  • The nature and content of the image,
  • The circumstances surrounding its recording or distribution,
  • The depicted person’s age, intellectual capacity, vulnerability, or other circumstances,
  • The extent to which the conduct invaded the depicted person’s privacy, and
  • The relationship between the parties involved.

If you’re facing court for the offence of Distributing an Intimate Image Without Consent, contact Barsha Defence Lawyers for a free initial conference with an experienced defence lawyer. We will assess your case, outline your options, and vigorously advocate for the best possible outcome.

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