Distribute Intimate Images without Consent

The offence of Distribute Intimate Image without Consent carries the maximum penalties of an $11,000 fine and/or 3 years imprisonment.

What does it mean to Distribute an Intimate Image without Consent?

Distribute Intimate Image without Consent is set out in section 91Q of the Crimes Act 1900 (NSW) which states:

(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.

Meaning, it is an offence to send out an intimate image of someone, such as a nude photo, to other people when there was no consent given and you knew there was no consent.

This offence is also known as ‘Revenge Porn’ and is a serious offence which you should obtain legal advice in relation to.

The following acts constitute Distribute Intimate Image without Consent:

• Sending someone else’s nudes out to other people on social media
• Showing your work colleagues naked pictures of your partner that are saved on your mobile phone.
• Uploading a video of someone you know who is engaged in a sexual act onto a website without their knowledge

What Must be Proven?

For a person to be found guilty of Distribute Intimate Image without Consent, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• They shared an intimate image of another person:
• They did not have the consent of the other person; and
• They knew or were reckless as to whether the other person had consented to the distribution of the image.

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?

This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences to Distribute Intimate Image without Consent

The following defences may be available for a Distribute Intimate Image without Consent charge:

• That the distribution was accidental;
• Honest and reasonable mistake;
• That the other person consented to their image being shared;
• That the image was not an intimate image;
• Duress

Common Questions about Distribute Intimate Image without Consent

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely depending on the circumstances surrounding the offence. 

In NSW, a Court can impose any of the following penalties for Distributing an Intimate Image without Consent charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

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 Distributing an Intimate Image without Consent charge might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of violence can completely rule out certain career paths.

Will I go to Gaol?

A gaol sentence is possible with this offence but the likelihood of that being the outcome depends on the circumstances surrounding the offence.

What if the person in the images/videos consented?

Consent is a complicated legal term and can be read about here [LINK]

What If The Person Is Under 16?

If a person accused of this offence is under the age of 16 years old, then the Prosecution is not to commence proceedings without the approval of the Director of Public Prosecutions (DPP).

If the person depicted in the image or video is under 16, the accused is more likely to be charged with the offence of Distributing Child Abuse Material under Section 91H(2) of the Crimes Act 1900 (NSW) which can be read about here [LINK].

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