Revenge porn and image-based abuse

(A version of this post was originally posted on Amicus on 6 June 2017)

In NSW it is a criminal offence to non-consensually share intimate images. These offences, reflect but go further than, similar laws in South Australia and Victoria – which are both limited to distribution and do not provide the same level of detail with regard to important definitional issues, such as what constitutes consent.

This post will give some background to the laws and examine the legislation in some detail.

Background

It will come as no surprise that there is currently a lot of public concern (also here) about image-based abuse – colloquially known as “revenge porn.” One large study found that one in five respondents had been the victim of this kind of abuse. Interestingly, unlike a lot of other sexually based violence, this same survey suggests that men and women were equally likely to be victims.

The NSW laws come off the back of a 2016 NSW Parliamentary Inquiry (see also this excellent Parliamentary Research Service Ebrief by Tom Gotsis) and, as noted above, other states have moved to criminalise this conduct. In May this year, the COAG Law, Crime and Community Safety Council endorsed the National Statement of Principles Relating to the Criminalisation of the Non-Consensual Sharing of Intimate Images. The NSW Bill is broadly congruent with these principles.

The Commonwealth government is also currently considering introducing a civil penalty regime to address the issue. While we’re talking about the Commonwealth, it’s worth noting that this kind of conduct will often fall under the Commonwealth Criminal Code s 474.17. However, it has been suggested in the past that the AFP is reluctant to investigate image based abuse.

Existing NSW legislation

In NSW Crimes Act ss 91K, 91L and 578C already criminalise some of the kinds of behaviour that can constitutes image based abuse.

Section 91K creates an offence of “filming another person who is engaged in a private act” without that person’s consent and for the purposes of sexual gratification. Importantly, for the offence to be made out the offender must know that the victim does not consent. The maximum penalty for this offence is 2 years. The section also creates an aggravated form of the offence – with a 5 year maximum – where the victim was either under 16 years old, or the offender specifically built a hidden camera into a building.

Section 91L is perhaps more on point when thinking about image based abuse. The section makes it an offence to film a person’s private parts for sexual gratification, in circumstances in which a reasonable person would expect the person’s private parts could not be filmed. The victim must not have consented to being filmed for sexual gratification, and the offender must know that victim does not consent. This provision has the same penalty as s 91K and also creates a similar an aggravated version of the offence.

Finally, s 578C makes it an offence to publish an indecent article. “Indecent” is not defined by the legislation, and it is open to an accused to argue that the article in question was in fact not indecent. Publishing includes distributing and possession or making for the purposes of distributing. The maximum penalty for this offence is 12 months.

For an application of this provision in the context of image based abuse, see Police v Ravshan Usmanov (in the NSWLC) and Usmanov v R (NSWDC).

These offences certainly cover some of the ground sought to be covered by the new offences. However there is a range of conduct that is not covered by the existing provisions. For example, neither ss 91K nor 91L would cover circumstances where the filing was consensual but where a subsequent distribution or publication was not.

The new offences

The Bill inserts a new Division 15C into Part 3 of the Crimes Act. It create four new offences: Record intimate image without consent (s 91P); Distribute intimate image without consent (s 91Q); and threaten to record (s 91R(1)) or distribute intimate image (s 91R(2)).

Record or distribute offences 

For either ss 91P and 91Q, the relevant offence is made out if an offender either records or distributes an “intimate image” of a person without that person’s consent, and they are reckless to that lack of consent. The maximum penalty is three years.

Importantly, recording and distributing are separate acts constituting separate offences and so an offender may possibly be charged with both.

There are a number of exceptions to the record and distribute offences. These where the images were done for genuine medical, scientific, or law enforcement purposes; or where ordered by a court or reasonably necessary for legal proceedings.

In addition to these fairly mundane exceptions, there is another exception which excludes conduct that a reasonable person would find acceptable. This is to be assessed by reference to the following:

• the nature and content of the image,
• the circumstances in which it was recorded/distributed,
• the degree to which the recording or distribution impacted on the victim’s privacy,
• the age, intellectual capacity and vulnerability of the person in the image, and
• the relationship between the accused and the victim.

I note (without comment) that this exception seems to open the door to a whole host of possible defence arguments.

Threaten Offences

For the ‘threaten’ offences, if a person threatens to record or distribute an intimate image of another person without their consent and the threat is made with the intent to cause that other person to fear that the threat will be carried out. Importantly, a threat can be explicit, or implicit, conditional, and it doesn’t matter whether an intimate image exists or not.  Again, the maximum penalty is 3 years.

Consenting to intimate images

The definition of intimate image includes an image taken, or – importantly – altered to appear to show:

• any image of a person’s private parts – defined as genital area or anal area, whether bare or covered by underwear, or breasts of a female person, or transgender or intersex person identifying as female; or
• a person engaged in a private act – which means being in a state of undress, bathing etc, engaging sexual act of a kind not ordinarily done in public, or any similar activity,

where there is a reasonable expectation of privacy.

Section 91O provides detailed guidance on the meaning of consent for the purposes of the division:

• it must be free and voluntary,
• consent on one occasion is not on its own consent for another occasion,
• consent to distribute an image in one way is not consent to distribute it in another way, and
• where a person distributes an image themselves, that distribution does not constitute consent for further distribution.

This section also excludes consent:

• where the person is under 16 years old, or where they lack capacity to consent,
• where they are unconscious or asleep,
• procured because of threats of force or terror – either to the person or to another person, or
• if they are unlawfully detained.

Take down orders

The Division also provides that the Court may order a person convicted of the above offenses to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed. Failure to comply with an order made is a summary offence with a maximum penalty of 2 years.

Oddly, rather than giving the Court a more general power to make take-down orders, such orders can only be made against a person convicted of an offence.

Prosecution of minors

This kind of conduct is particularly prevalent among children under the age of 18, and so these laws risk inappropriate criminalisation of the conduct of young people. The legislation incorporates a safeguard in this respect, requiring the DPP’s consent to commence prosecutions against persons under the age of 16.

Conclusion

The are specifically tailored to the relevant conduct, and as such are an appropriate augmentation to the existing provisions in the Crimes Act. Furthermore, the guidance given by the legislation on the question of consent is a welcome innovation because it clearly circumscribes and delineates what constitutes consent. Despite uncertainties surrounding aspects of the bill, including the acceptable conduct exception, and the limitations in the take-down power of the court, this legislation will serve as a model of other jurisdiction as they implement the COAG Statement of Principles.