Filming a Person’s Private Parts

In NSW, filming a person’s private parts is a serious offence that carries a maximum penalty of 100 penalty units and/or imprisonment for two years. If the offence is committed in circumstances of aggravation, the maximum penalty increases to a term of imprisonment of five years.

Offence of Filming a Person’s Private Parts

The offence of ‘filming a person’s private parts’ is set out in section 91L of the Crimes Act 1900 (NSW) 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:

• without the consent of the person being filmed to being filmed for that purpose; and
• knowing that the person being filmed does not consent to being filmed for that purpose.

Section 91N defines ‘film’ to include both still photographs and videos. Section 91N also defines ‘private parts’.

Aggravated Offence

The aggravated offence is contained in Section 91L(3) which 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:

• without the consent of the person being filmed to being filmed for that purpose, and
• knowing that the person being filmed does not consent to being filmed for that purpose is guilty of an offence.

What Are Circumstances Of Aggravation?

Section 91(4) describes circumstances of aggravation as:

• the person whom the offender filmed was a child under the age of 16 years; or
• the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

examples of constructing or adapting the fabric of any building include where a person installs a hidden camera in the wall of a toilet cubicle, or where a person creates a peephole in a door or wall to film the person on the other side.

What Actions Might Constitute “Filming A Person’s Private Parts”?

Examples of the offence of ‘filming a person’s private parts; include:

• installing a hidden camera in a public toilet; or
• ‘upskirting’ a woman by taking a photograph up their skirt.

For both the general and the aggravated offence, a person can be charged with and convicted of the respective offence if the prosecution can prove that they attempted to commit that offence.

What The Police Must Prove?

to prove  an offence of filming a person’s private parts, the Police must prove, beyond reasonable doubt, that the person:

General Offence

• for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification;
• 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
• the person filming knew that that person did not consent to being filmed for that purpose.

Aggravated Offence

To prove the aggravated offence under section 91K(3), the police must also prove, beyond reasonable doubt, that:

• the person filmed was under 16 years of age; or
• the person filming constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

It is important to note that the law specifically prohibits a person from being convicted under this section and section 91K of the Crimes Act 1900 in relation to the same conduct. This means that if a person is charged and convicted of filming a person engaged in a private act, they cannot also be charged and convicted for this offence in relation to the same conduct. Multiple charges can be laid if the police rely on separate or discrete acts.

Possible Defences To Filming Person’s Private Parts

It is possible to defend this charge by:

• arguing that the purpose of filming was not to obtain, nor caused another person to obtain, sexual arousal or gratification,
• arguing that the person filming had the consent of the person being filmed to be filmed for that purpose,
• arguing that they genuinely believed they had the consent of the person being filmed for that purpose,
• arguing that the circumstances were such that the person being filmed could not have a reasonable expectation that their private parts could not be filmed; or
• raising necessity or duress as the reason for the conduct.

What Court Will Deal With My Matter?

The general offence under section 91L(1) is a summary offence and the matter must be finalised in the Local Court.

The aggravated offence, under section 91L(3) is a Table 1 Offence. That means that the matter will be finalised in the Local Court unless the offender or the prosecution elect to have the matter finalised in the District Court. If the matter is finalised in the Local Court the jurisdictional limit is 2 years imprisonment, meaning the court cannot impose a sentence greater than that. If the matter is finalised in the District Court, a sentence of up to 5 years imprisonment can be imposed

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 any legal advice in relation to filming a person’s private parts or any other legal matter, call Armstrong Legal on 1300 038 223 or send us an email.