Revenge porn is a term often used to describe the growing occurrence of people distributing intimate images of their former partners, without their consent. In many cases, photo and videos of their former partners are obtained legally during the relationship and then shared following a breakup. Often people are driven by the desire to “get back” at someone who has hurt them. Feeling hurt and betrayed can cause anger and urges to inflict the same type of pain on the person that has caused it. Revenge porn can offer what feels like the ultimate ability to hurt and embarrass someone. However, distributing an intimate image without consent is a criminal offence pursuant to section 91Q of the Crimes Act 1900 (NSW) (‘Act’).

THE LAW

Section 91Q of the Act states:

(1) A person who intentionally distributes an intimate image of another person —

(a) without the consent of the person, and

(b) 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.

The maximum penalty–100 penalty units or imprisonment for 3 years, or both.

WHAT MUST THE PROSECUTION PROVE?

Since distributing intimate images without consent is a criminal offence, the burden of proof lies on the prosecution.

The prosecution must prove each of the elements in the charge beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of distributing intimate images without consent.

To establish someone has distributed intimate images without consent  the prosecution must prove each of the following matters beyond reasonable doubt;

  1. A person intentionally distributed an intimidate image of another person;
  2. Without that person’s consent;
  3. Knowing the other person did not consent or being reckless as to whether they were consenting.

WHAT IS CONSENT?

Section 61HE of the Act defines consent as:

A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.

WHAT IS DISTRIBUTE?

Section 91N of the Act defines distribute as:

(a) send, supply, exhibit, transmit or communicate to another person, or

(b) make available for viewing or access by another person,

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

WHAT IS AN INTIMATE IMAGE?

Section 91N of the Act defines intimate image as:

(a) 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

(b) 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.

WHAT ARE PRIVATE PARTS?

Section 91N of the Act 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.

WHAT IS ENGAGED IN A PRIVATE ACT?

Section 91N of the Act defines engaged in a private act as:

(a) in a state of undress, or

(b) using the toilet, showering or bathing, or

(c) engaged in a sexual act of a kind not ordinarily done in public, or

(d) engaged in any other like activity.

YOUR OPTIONS AT LAW

If you are charged with the offence of distributing intimate images without consent what are your options? National Criminal Lawyers® offers the following options for those who have been charged with distributing intimate images without consent:

  1. Negotiate with the prosecutors (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. Plead Not Guilty and go to hearing/trial and persuade the Court that the prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf.

If you or someone you know has been charged with a criminal offence of bigamy and would like to discuss potential defences, contact us today.

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