Crimes Amendment (Intimate Images) Act 2017

NSW joins Victoria and South Australia in introducing a criminal offence targeting the non-consensual sharing of sexual images.

The Crimes Amendment (Intimate Images) Act 2017 has passed both houses of Parliament but has not yet commenced. The Act creates four new Table 2 offences to address the non-consensual sharing of intimate images:

Recording an intimate image without consent (section 91P)

Distributing an intimate image without consent (section 91Q)

Threatening to record an intimate image without consent (section 91R(1))

Threatening to distribute an intimate image without consent (section 91R(2))

Requisite mental element

For the recording and distributing offences in sections 91P and 91Q, the prosecution must prove that the act of recording or distributing is intentional, and that the person either knew that, or was reckless as to whether, the victim did not consent to the recording or distributing.

For the threat offences in section 91R, the prosecution must prove that the person who made the threat intended to cause the other person to fear that the threat would be carried out. It is irrelevant whether the image actually existed or not.  These offences are particularly directed to the domestic violence context, where threats to distribute images may be used to control a person’s behaviour.

Consent

Section 91O provides that a person consents to a recording or distribution of the image if the person ‘freely and voluntarily agrees’ to the recording or distribution. Agreeing to the recording or distribution of an image on one occasion, or to a particular person, or in a particular way, does not mean that a person will be taken to have agreed to recording or distribution of another image, or on another occasion, or to another person, or in another way.  Distributing an image of oneself does not mean that a person consents to another person distributing the same image.

People under 16 or who do not have the capacity to consent (because of, for example, cognitive incapacity) are taken not to have consented to the recording or distribution of intimate images.

Exceptions

There is an exception for the recording or distributing offences where ‘a reasonable person would consider the conduct of the accused person acceptable’ (section 91T). This exception is intended to ensure that the new offences do not criminalise ‘socially acceptable activities’. ¹ In contrast, distribution of an image contrary to “community standards of acceptable conduct” under the equivalent offence provision in Victoria is incorporated as an element of proof rather than a statutory exception. ²

There are no exceptions for the offences of threaten to record or distribute an intimate image.

Overlap with unlawful filming offences

There will be times when the same acts could be prosecuted under either the new recording offence in section 91P, or the existing unlawful filming (or ‘upskirting’ offences in section 91K and 91L of the Crimes Act 1900 (NSW)). However, the unlawful filming offences require proof that the offender had the purpose of sexual arousal or sexual gratification, while the new offence does not require proof of any particular motivation.

Sexting, and young people as offenders and victims

The offences do not apply to ‘sexting’, that is, sending a nude picture of oneself to someone else. However, they will apply if that image is subsequently distributed without the person’s consent. The approval of the NSW Director of Public Prosecutions will be required for prosecutions of children under 16 years old.

Creating, possessing or distributing sexual images of children can still be  prosecuted under section 91H of the Crimes Act 1900 (NSW) and Part 10.6 of the Criminal Code Act 1995 (Cth). Section 91H concerns sexual images of a person under 16 years, and children can be prosecuted without the consent of the DPP. The Commonwealth offences concern sexual images of a person under 18 years, and the consent of the Cth Attorney-General is required to commence proceedings where a defendant is under 18 at the time of the alleged offence.

The working with children check will be triggered if an adult commits one of the new offences against a child.

Removing the images

The Bill also empowers courts to order a person convicted of the offence recording or distributing an intimate image to take reasonable actions to remove, delete or destroy any image recorded or distributed by the person (section 91S).

View the full text of the Act.

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¹ The Attorney General, The Hon Mark Speakman, Second Reading Speech, 24 May 2017.

² The NSW offences also contains exceptions where recording or distribution is for or medical, scientific or law enforcement purposes, or as required by a court or for legal proceedings.