Record Intimate Images without Consent

In NSW it is an offence under the Crimes Act 1900 Section 91P to record an intimate image without consent. An intimate image is defined as an image or video recording showing a person’s private parts, a person engaged in a private act or in circumstances that a reasonable person would expect to be private.

What Actions Might Constitute An Offence Of Recording Intimate Images Without Consent?

• Taking pictures of your girlfriend or boyfriend in their underwear, or naked, whilst they are asleep and without their prior consent.
• Filming or taking pictures of someone naked when they are too drunk to consent to the images being taken.
• Taking an intimate picture or video of someone who has consented to a video or picture being taken previously, but who has not expressly consented this time.

What The Police Must Prove

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

• that the accused recorded an intimate image of a person; and
• that the recording was done without the person’s consent; and
• that the accused knew that the person did not consent or was reckless about their consent.

Removal Of Intimate Images

If a person is found guilty of this offence the court may ask them to remove, retract, recover, delete or destroy any intimate image recorded or distributed within a period specified by the court. If they do not do so they can be charged with another offence.

Possible Defences For Recording Intimate Images Without Consent

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

• that the person in the recording/picture freely and voluntarily agreed to the recording 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; and
• 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;
• that the image was not an intimate image;
• that the person acted under duress.

Which Court Will Hear the Matter?

Recording intimate images without consent is a Table 2 offence which means that the Director of Public Prosecutions (DPP) or the defence 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.

What If The Person Is Under The Age Of 16?

A person under the age of 16 years is not to be prosecuted for this offence without the approval of the Director of Public Prosecutions.

Types Of Penalties

The offence carries a maximum penalty of imprisonment for three years or a fine of 100 penalty units. 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 legal advice in relation to recording an intimate image without consent or any other legal matter please contact Armstrong Legal.