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Distribute Intimate Images without Consent (Revenge Porn)


Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, it is an offence to distribute an intimate image of someone, without their consent. An intimate image is defined as:

  • an image of a person's private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
  • an image 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 reasonably expect to be afforded privacy.

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

You can find a brief description of each of these penalties at the bottom of this page.

‘Distribute’ includes:

  • send, supply, exhibit, transmit or communicate to another person, or
  • make available for viewing or access by another person,

whether in person or by electronic, digital or any other means.

The maximum penalty for this offence is three years imprisonment, and/or 100 penalty units.

If you are guilty of this offence, the Court has the power to 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.

THE OFFENCE OF DISTRIBUTING INTIMATE IMAGES WITHOUT CONSENT

The offence of distributing intimate images without consent is contained in section 91Q of the Crimes Act 1900 which states:

  • A person who intentionally distributes an intimate image of another person:
    • without the consent of the person, and
    • 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.

  • 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.

WHAT ACTIONS MIGHT CONSTITUTE AN OFFENCE OF DISTRIBUTING INTIMATE IMAGES WITHOUT CONSENT

  • Sending a naked picture of your ex-girlfriend to your friends;
  • Posting a video of you and your partner having sexual intercourse on a webpage, without them consenting to you doing so;
  • Printing an intimate image you have of your ex-boyfriend and putting up copies of the image all over your school notice board;
  • Showing your work colleagues naked pictures of your partner that you have saved on your mobile phone.

WHAT THE POLICE MUST PROVE:

To convict you of distributing an intimate image without consent, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you:
    • Intentionally distributed an intimate image of a person; and
    • That distribution was done without their consent, and you either knew that they did not consent or you were reckless about their consent.

POSSIBLE DEFENCES FOR DISTRIBUTING INTIMATE IMAGES WITHOUT CONSENT

Possible defences to recording intimate images without consent include but are not limited to:

  • That the distribution of the image was accidental (not intentional)
  • The person freely and voluntarily agreed to the distribution of the intimate image.
  • A reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following (to the extent relevant):
    • the nature and content of the image,
    • the circumstances in which the image was recorded or distributed,
    • the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image,
    • the degree to which the accused person’s actions affect the privacy of the person depicted in the image,
    • the relationship between the accused person and the person depicted in the image.
  • hat the image was not an ‘intimate’ image

WHICH COURT WILL HEAR YOUR MATTER?

This matter is a Table 2 offence which means that the 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.



Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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