Record Intimate Images without Consent

In New South Wales, it is an offence to record intimate images without consent. The maximum penalty for this charge is 3 years imprisonment and/or a $1,100 fine. 

What is Recording an Intimate Image without Consent?

The legislation describes the offence of ‘Record Intimate Image without Consent’ under Section 91P of the Crimes Act 1900 (NSW) which states that:

1. A person who intentionally records an intimate image or audio material of another person

1. 1. Without the consent of the person, and
   2. Knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording 

                         Is guilty of an offence.

The prosecution of a person under the age of 16 years old for this offence is not to be commenced without the approval of the Director of Public Prosecutions.

The following acts might constitute Recording an Intimate Image without Consent:

• Taking pictures of your partner in their underwear whilst they are sleeping
• Filming someone whilst they are naked without their explicit consent

What Must Be Proven?

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

• That you recorded an intimate image of a person; and
• That the recording was done without the other person’s consent; and
• You knew that the person did not consent or was reckless about their 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?

This is a Table 2 offence which means that the Director of Public Prosecutions (DPP) or the defence can elect to have the matter dealt with in the District Court. If no election is made, it will be dealt with in the Local Court.

Possible Defences

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

• That the person being recorded provided their free and explicit consent to having the image recorded
• That the image was not intimate in nature
• Duress 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

A Court can impose any of the following penalties for a Record 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 this offence might jeopardise your job and personal relationships. Moreover, a conviction for an offence of this nature can completely rule out certain career paths such as teaching and a range of government employment options. 

Will I go to Gaol?

There is a possibility you may receive a gaol sentence up to 3 years imprisonment. It is important that you get expert advice to assist you, if you are facing this charge. 

What should I do if I received consent from my partner to record an intimate image, but now they are saying they never consented?

If you find yourself in this situation, please contact Armstrong Legal immediately. 

Can the Court impose any other orders, other than a gaol sentence or a fine?

If you are found guilty of this offence, the Court may ask you to remove, retract, delete or destroy any image recorded without a time period specified by the Court. If you do not adhere to this order, you may be charged with a further offence.

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