Threaten To Capture Or Distribute Intimate Images

In the ACT, it is an offence to threaten to take or share an intimate image, or video, of another person even if it is impossible to carry out the threat. The maximum penalty is a $48,000 fine or three years imprisonment, or both. However, if the offence involves family violence, it is an aggravated offence and the maximum penalty is increased to a $64,000 fine or four years imprisonment, or both. 

What is Threatening to Capture or Distribute Intimate Images?

Section 72E of the Crimes Act 1900 makes it an offence to threaten to take or share an intimate image of another person:

• with the intention that the victim will fear that the threat will be carried out; or
• being reckless about whether the victim will fear that the threat would be carried out.

The following acts constitute Threatening to Capture or Distribute Intimate Images:

• Telling your boyfriend that you’ll send his friends naked pictures of him if he breaks up with you;
• Threatening to publish an intimate recording of your girlfriend online;
• Saying you’ll post intimate images of a friend on social media.

What Must Be Proven?

For a person to be found guilty of Threatening to Capture or Distribute Intimate Images the Prosecution must prove each of the following matters beyond a reasonable doubt: 

• You threatened to record or share an intimate image of a person; and
• The image recording or sharing would be done without consent; and
• You intended for them to fear that the threat would be carried out or you were reckless about whether the threat would be carried out.

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

The Court can convict you of Threatening to Capture or Distribute Intimate Images even if it is impossible for you to carry out the threat. This may be because the image does not exist or you do not have an internet connection, or a printer to print out the image.

A person can be convicted of this offence even if the person previously consented to you taking or sharing their image. Sharing an intimate image of a person includes images that have been altered.

Which Court Will Hear the Matter?

The offence of Threatening to Capture or Distribute Intimate Images will either be heard in the Magistrates Court of the Supreme Court. 

The Prosecution can elect to have the matter dealt with in the Magistrates Court, or you can consent to jurisdiction.  If your matter is finalised in the Magistrates Court the maximum penalty that can be imposed is a $5,000 fine or two years imprisonment, or both. 

If the matter is heard in the Supreme Court the maximum penalty can be imposed.

Possible Defences for Threatening to Capture or Distribute Intimate Images Without Consent

• you did not intend the other person to fear the threat would be carried out and was not reckless as to this; or
• that the other person consented to have their image or video taken; or
• honest and reasonable mistake of fact; or 
• 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 of the Crimes Act 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.

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