Filming a Person Engaged in Private Act

The offence of Filming a Person Engaged in Private Act carries the maximum penalties of an $11,000 fine and/or 2 years imprisonment.

What is Filming a Person Engaged in a Private Act?

Filming a Person Engaged in Private Act is set out under section 91K of the Crimes Act 1900 (NSW) (the Act) and states:

(1) General offence – A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act—

(a)  without the consent of the person being filmed to being filmed for that purpose, and

(b)  knowing that the person being filmed does not consent to being filmed for that purpose,

is guilty of an offence.

Maximum penalty—100 penalty units or imprisonment for 2 years, or both.

Section 91N of the Act defines ‘film’ to include both photographs and videos and defines ‘private parts’ as:

(a)  a person’s genital area or anal area, whether bare or covered by underwear, or

(b)  the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

Meaning, it is an offence to film someone who is engaged in a private act such as getting changed if they are nude or during sexual acts, for the purpose of obtaining sexual pleasure, if the other person did not consent.

This is a serious offence which you should obtain legal advice in relation to.

The following acts constitute Filming a Person Engaged in Private Act:

• Filming someone you are having sex with, without their consent.
• Filming someone who is in the process of getting changed, without their consent.

What Must be Proven?

For a person to be found guilty of Filming a Person Engaged in Private Act, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• For the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification;
• Filmed a person;
• Whilst that person was engaged in a private act;
• That you did so without the consent of that person; and
• Knowing that that person did not consent to being filmed for that purpose.

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 matter is a Summary Offence meaning it will be dealt with in its entirety in the Local Court.

Possible Defences to Filming a Person Engaged in Private Act

The following defences may be available for a Filming a Person Engaged in Private Act charge:

• The purpose of filming was not to obtain yourself, nor caused another person to obtain, sexual arousal or gratification,
• You had the consent of the person being filmed to be filmed for that purpose, or
• You genuinely believed you had the consent of the person being filmed for that purpose.

Common Questions about Filming a Person Engaged in Private Act

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

In NSW, a Court can impose any of the following penalties for a Filming a Person Engaged in Private Act 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 Filming a Person Engaged in Private Act might jeopardise your job or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for a Filming a Person Engaged in Private Act charge?

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 tricky legal term and can be read about here.

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