Non-Consensual Distribution of Intimate Images

In the ACT, it is a criminal offence to share intimate images of another person without their consent. 

The offence of Non-Consensual Distribution of Intimate Images carries a maximum penalty of a $48,000 fine or 3 years imprisonment, or both. However, if the offence is aggravated, the maximum penalty is increased to a $64,000 fine or 4 years imprisonment, or both. An offence is aggravated if it involves family violence. 

If the person captured in the intimate image is under 16 years old, they can be charged with a separate offence of ‘distribution of intimate image of a young person. This offence carries a maximum penalty of a $80,000 fine or 5 years imprisonment, or both. If the offence is aggravated by family violence, the maximum penalty is increased to a $96,000 fine or 6 years imprisonment, or both. 

What is Non-Consensual Distribution of Intimate Image?

Under Section 72C of the Crimes Act 1900 a person commits an offence if:

• they distribute an intimate image of another person; and
• do so with the knowledge that the other person did not agree for the image to be shared; or
• are reckless about whether the other person agreed for the image to be shared.

If a person posts intimate images of another person without their consent, they can be charged with an offence even if they subsequently remove, delete, or otherwise destroy the images. If the images have not been removed by the time a person is found guilty of the offence, the Court has the authority to order them to take reasonable steps to remove, delete or otherwise destroy the images. If they do not comply with the Court order they can be charged with another offence.

The following acts constitute Non-Consensual Distribution of Intimate Images:

• sending a naked picture of your ex to your friends without their knowledge or permission;
• posting a video of you and your partner having sex on a web page without them agreeing to you doing so;
• printing an intimate image of your ex and placing copies on a school’s notice board;
• showing your work colleagues naked pictures of your partner that are saved on your mobile phone.

The image does not need to be viewed or accessible for the Non-Consensual Distribution of Intimate Images offence to apply.

What Must Be Proven?

For a person to be found guilty of Non-consensual Distribution of an Intimate Image the Prosecution must prove each of the following matters beyond a reasonable doubt: 

• intentionally distributed an intimate image of someone; and
• did so without the other person’s consent; and
• knew they did not consent.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

Matters related to Non-Consensual Distribution of Intimate Images can either be heard in the Magistrates Court or the Supreme Court. If you consent to the jurisdiction of the Magistrates Court, the maximum penalty that can be imposed is a $5,000 fine and/or two years imprisonment. However, if the matter is heard in the Supreme Court the maximum penalty can be imposed.

Possible Defences to Distributing Intimate Images without Consent

The following defences may be available for a charge of Distributing an Intimate Image Without Consent: 

• • the distribution was accidental;
  • the other person consented to their image being shared;
  • the image was not an intimate image;
  • the image(s) were distributed for a legitimate purpose (discussed further below);

• the person who distributed the image(s) acted under duress. 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely.

In the ACT, a Court can impose any of the following penalties:

• Full-time imprisonment
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Fine
• Good Behaviour Order 
• Non-conviction 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for incest might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of a sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences also often result in sentences that include imprisonment even where a person has no previous convictions. 

Will I go to Gaol?

The offence carries a maximum penalty of a term of full-time imprisonment. There is a possibility that you can be sentenced to serve a term of imprisonment if you are found guilty of, or plead guilty to, this offence. 

What is Consent?

Consent is defined in Section 67 as a person agreeing to the distribution of an intimate image when they were not subject to:

• threats of violence, force or extortion on the person; or
• under the influence of alcohol, drugs or anaesthetic or otherwise lacking mental capacity to consent; or
• induced by a misrepresentation of facts by another person; or
• subjected to the abuse of power by a person in a position of authority; or
• threatened, or held unlawfully and against their will.

A person cannot be presumed to have consented to the accused sharing the image because:

• they agreed on another occasion or agreed to someone else distributing the image; or
• shared the image with someone else; or
• agreed to someone else sharing another image in a different way.

What is Reasonable Distribution?

There are some instances where the distribution of intimate images is reasonable.  These include where the images are shared:

• by a law enforcement officer acting reasonably within their job description;
• for the purposes of law enforcement, criminal reporting or a legal proceeding;
• for the purposes of reporting an offence to a law enforcement officer;
• by a security provider performing their security activity;
• for a scientific, medial or education purpose;
• by a person protecting premises owned by them;
• when the image is shared in reasonably accepted circumstances such as sharing a picture or video of a naked newborn;
• for a purpose described by regulation.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.