Threaten to Record or Distribute Intimate Image (Revenge Porn)

In NSW it is an offence under the Crimes Act 1900 Section 91R to threaten to record or share an intimate image of another person without the other person’s consent. The maximum penalty for this offence is a fine of 100 penalty units and/or three years imprisonment.

The offence of threatening to record or distribute intimate images of another person without their consent covers situations where a person:

• threatens to record or distribute an intimate image of another person without the consent of the other person; and
• intends the other person to fear that the threat will be carried out.

The prosecution does not need to prove that the person threatened was actually afraid that the threat would be carried out.

A person can be charged with this offence whether or not the image exists.

What Actions Are Threatening To Record Or Distribute Intimate Images Without Consent?

The following situations could give rise to a charge under Section 91R:

• taking a photograph or recording a video of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would expect to be afforded privacy, or
• taking a photograph or recording a video that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would expect to be afforded privacy.

Removal Of Images

If you are convicted of this offence, the court can order that you take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person in contravention of the section within a period specified by the court. You can be charged with another offence if you do not comply with the court’s orders.

What Must Be Proven

In order for a person to be found guilty of this offence, the court must be satisfied beyond a reasonable doubt that:

• that the person threatened to record or share an intimate image of a person without their consent, and
• that they intended the other person to fear the threat would be carried out.

Possible Defences

The following defences can be advanced in response to a charge of distributing intimate images without consent:

• That the accused did not intend to cause the person to fear that the threat would be carried out;
• That the person consented to the distribution or recording;
• That the accused acted under duress.

Which Court Will Hear Your Matter?

This matter is a Table 2 offence which means that the Director of Public Prosecutions (DPP) 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.

What If The Person Is Under The Age Of 16?

If a person accused of this offence is under the age of 16 years then prosecution is not to commence without the Director of Public Prosecutions approving it. If the person depicted in the image or video is under 16, the accused is more likely to be charged with an offence relating to child abuse material.

Types Of Penalties

In NSW, a court can impose any of the following penalties for this charge.

• Prison Sentence
• Home Detention
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Community Corrections Orders (CCO)
• Good Behaviour Bond
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

If you require legal advice in relation to threatening to record or distribute an intimate image without consent (revenge porn) or any other legal matter please contact Armstrong Legal.