Sharing Nudes Without Consent Is Soon A Crime In Queensland
In our role as Criminal Lawyers Sydney, we are often approached with some very interesting cases. It is further often said that there are three (3) truths to every criminal case; what the client says is the truth, what the police say is the truth and finally what the actual truth is.
Recently we were asked to discuss our opinions on the new law in Queensland which has sought to criminalise the sending and threatening to send of private material in any form without the consent of that person. It is said that this law has now passed state parliament on Wednesday.
Ten Daily has reported on this. To view this, please click here.
WHAT IS SEXTING?
Sexting is the idea of consensual messaging between one party and another, usually in the form of a sexual nature. This includes sending photos of private parts.
An example of sexting includes:
- taking naked or partially naked photos or videos of yourself (posing in a sexual way) and sending the photos via the internet or mobile phones
- receiving or forwarding naked or partially naked photos or videos through mobile phones, internet and social networking sites such as Facebook or Instagram.
IS SEXTING A CRIME?
Currently as it stands, it is illegal to create, send, possess or intend to possess images of someone aged under 18 in a sexual form. However, there are no laws currently in place that make it illegal to create, send, possess or intend to possess images of a person aged over 18.
However, new laws are being proposed in Parliament to make it illegal to send a photo of a private part without consent of the other party.
WHAT IS CONSENT?
His Honour Justice Fisher concluded that on the basis of the decision of the High Court in McHale v Watson (1964) 111 CLR 384 and Blacker v Waters (1928) 28 SR(NSW) 206, a decision of the full bench of the Supreme Court of New South Wales, the burden of proving consent lay upon the defendant.
His Honour said:
“The question to be determined is whether there is any evidence upon which the jury can find there was a breach of duty to warn and inform [at all] or to warn and inform in certain terms. The two questions are really aspects of the same general duty, a duty to take reasonable care to avoid a foreseeable risk, to be determined according to a standard of practice”
THE NEW LAWS
Attorney-General Yvette D’Ath says the government is not looking to “penalise consenting adults who happily share images with each other” but rather instead they want to “crack down on breaches of privacy and avoid the distress caused to victims”.
According to the triple j survey, 55 per cent of 18 to 29-year-olds surveyed have sent a naked selfie.
It is, as Senior Detective Sergeant David Miles from Queensland Police describes it, an “accepted social norm”.
But it may surprise you to learn that there is no national law to stop someone sharing an intimate photo of you without your consent. So if things go south with your new flame, and they decide to post that naked selfie on a website or share it through social media, they aren’t breaking any specific federal laws. That is not to say that a person may bring a breach of privacy against the perpetrator.
WHAT SHOULD I DO IF I RECEIVE A PHOTO OR VIDEO?
Remember: You won’t get into trouble if you were sent sexual images without asking for them and you deleted the images as soon as you could.
If you know the sender, let them know you do not want them to send you any more images. You may also want to talk to a trusted adult or the police about what happened. Get legal advice.
It’s important to respect other people’s choices and their right to privacy and dignity.
WHAT IF SOMEONE HAS SHARED A PRIVATE PHOTO OF ME?
If someone has shared a photo of you without your consent there are a number of things you can do:
- if the image is on a social networking site like Facebook, you can report the image to Facebook and ask for it to be removed. The best way to do this is to use the report link that appears near the content.
- if you think an image on Facebook violates your privacy rights you can also ask Facebook to have them removed. See Facebook’s image privacy rights
- talk to someone you trust—a parent, friend, school counsellor or teacher
- report it to the police if the images are being spread without your consent.