Filming a Person’s Private Parts

The offence of Filming a Person’s Private Parts carries the maximum penalties of an $11,000 fine and/or 2 years imprisonment. If the offence is committed in circumstances of aggravation, the maximum penalty increases to 5 years imprisonment.

What is Filming a Person’s Private Parts?

The offence of Filming a Person’s Private Parts is set out under section 91L of the Crimes Act 1900 (NSW) (the Act) and states:

(1) A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed—

(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.

Meaning, it is an offence if you film another person’s private parts, or assist another person in doing so, for the purpose of sexual arousal, in circumstances where it is unreasonable to be filming.

The offence of Filming a Person’s Private Parts under circumstances of Aggravation is set out under section 91L(3) of the Act and states:

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed—

(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, and

(c)  in circumstances of aggravation,

is guilty of an offence.

Maximum penalty—imprisonment for 5 years.

The circumstances of aggravation are listed under section 91L(4) of the Act:

(a)  the person whom the offender filmed was a child under the age of 16 years, or

(b)  the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

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.

The following acts constitute Filming a Person’s Private Parts:

• Taking a photo up a woman’s skirt
• Installing a hidden camera in a public toilet (aggravated offence as the building in which the camera was installed was altered to facilitate the offence).

What Must be Proven?

For a person to be found guilty of Filming a Person’s Private Parts, the Prosecution must prove each of the following matters beyond a reasonable doubt:

General Offence

• You filmed for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification;
• You filmed the private parts of another person;
• The filming was done in circumstances in which a reasonable person would reasonably expect that their private parts could not be filmed;
• The filming was done without the consent of the person being filmed; and
• You knew that that person did not consent to being filmed for that purpose.

Aggravated Offence

• The above matters, and
• The person filmed was under 16 years old, or
• You constructed or adapted the fabric of any building for the purpose of facilitating the offence.

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?

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

The aggravated offence is a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court.

Possible Defences to Filming a Person’s Private Parts

The following defences may be available for a Filming a Person’s Private Parts charge:

• Duress
• The purpose of the filming was not for sexual arousal or gratification
• You had the consent of/genuinely believed you had the consent of the person being filmed

Common Questions about Filming a Person’s Private Parts

Will I receive a criminal conviction?

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

In NSW, a Court can impose any of the following penalties for a Filming a Person’s Private Parts 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 a Filming a Person’s Private Parts charge might jeopardise your job. 

Will I go to Gaol for a Filming a Person’s Private Parts 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.