Non-Consensual Distribution Of Intimate Images

Under the Crimes Act 2002 it is an offence to share, or threaten to share, intimate images (still or moving) of another person without their consent. Revenge porn, as it’s been dubbed by the media, has become more common in recent years.

What is Non-Consensual Distribution of Intimate Image?

Under Section 72C of the Crimes Act 1900 a person commits an offence if:

• they distribute an intimate image of another person; and
• do so with the knowledge that the other person did not agree for the image to be shared; or
• are reckless about whether the other person agreed for the image to be shared.

If a person posts intimate images of another person without their consent, they can be charged with an offence even if they subsequently remove, delete, or otherwise destroy the images. If the images have not been removed by the time the accused is found guilty of the offence, the court has the authority to order them to take reasonable steps to remove, delete or otherwise destroy the images. If they do not comply with the court order they can be charged with another offence.

What Actions Constitute Sharing an Image Without Consent?

The following actions could form the basis of a charge under Section 72C:

• sending a naked picture of your ex to your friends without your ex’s knowledge or permission;
• posting a video of you and your partner having sex on a web page without them agreeing to you doing so;
• printing an intimate image of your ex and placing copies on a school’s notice board;
• showing your work colleagues naked pictures of your partner that are saved on your mobile phone.

The image does not need to be viewed or accessible for the non-consensual distribution of intimate images offence to apply.

What the Police must Prove

A person can be convicted of this offence if the police can prove that they:

• intentionally distributed an intimate image of someone; and
• did so without the other person’s consent; and
• knew they did not consent.

Possible Defences for Distributing Intimate Images without Consent

Some defences for distributing an image without the other person’s consent include:

• that the distribution was accidental;
• honest and reasonable mistake;
• that the other person consented to their image being shared;
• that the image was not an intimate image;
• That the images were distributed for a legitimate purpose (discussed further below;
• that the accused acted under duress.

What is Consent?

Consent is defined in Section 67 as a person agreeing to the distribution of an intimate image when they were not subject to:

• threats of violence, force or extortion on the person; or
• under the influence of alcohol, drugs or anaesthetic or otherwise lacking mental capacity to consent; or
• induced by a misrepresentation of facts by another person; or
• subjected to the abuse of power by a person in a position of authority; or
• threatened, or held unlawfully and against their will.

A person cannot be presumed to have consented to the accused sharing the image because:

• they agreed on another occasion or agreed to someone else distributing the image; or
• shared the image with someone else; or
• agreed to someone else sharing another image in a different way.

What is Reasonable Distribution?

There are some instances where the distribution of intimate images is reasonable.  These include where the images are shared:

• by a law enforcement officer acting reasonably within their job description;
• for the purposes of law enforcement, criminal reporting or a legal proceeding;
• for the purposes of reporting an offence to a law enforcement officer;
• by a security provider performing their security activity;
• for a scientific, medial or education purpose;
• by a person protecting premises owned by them;
• when the image is shared in reasonably accepted circumstances such as sharing a picture or video of a naked newborn;
• for a purposed described by regulation.

Which Court Will Hear Your Matter?

Matters related to non-consensual distribution of intimate images will either be heard in the ACT Magistrates Court or the Supreme Court.

If the matter is heard in the Magistrates Court the maximum penalty that can be imposed is $5,000 and/or two years imprisonment. If the matter is heard in the ACT Supreme Court the maximum penalty can be imposed.

Related Offences

Under Section 72E of the Crimes Act it is an offence to threaten to capture or distribute an intimate image of another person with the intention that the other person will fear that the threat could be carried out. A person can be convicted of this offence even if it’s impossible for them to carry out the threat. The maximum penalty is 300 penalty units and/or three years imprisonment.

Section 72D of the Crimes Act makes it an offence to share an intimate image of a person under the age of 16. The maximum penalty is 500 penalty units and/or five years imprisonment. It should be noted that if a person is charged with this offence, they may also be charged with a child pornography offence.

Penalties

The maximum penalty for non-consensual distribution of intimate images is 300 penalty units and/or three years imprisonment; or 500 penalty units and/or five years imprisonment if the person whose images have been distributed is under 16; however the court can impose any of the following penalties:

• Prison Sentence
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Good Behaviour Bond
• Fine

If you require legal advice about non-consensual distribution of intimate images or any other legal matter, please contact Armstrong Legal.