Revenge Porn – Criminal Offence – Distributing Intimate Images
As of February 2019, it became illegal in Western Australia to distribute an image of a person engaged in a private act or an intimate image of that person without the consent of the person appearing in the image. The person giving the consent must be 16 years or older.
These changes are reflected in the Criminal Law Amendment (Intimate Images) Act 2019 which in turn amends the Criminal Code here in Western Australia.
The aim of this legislation is to protect the young from sexual exploitation, and all persons of any age from what is now referred to as revenge porn.
In his Second Reading speech the Western Australian Attorney General said: “The non- consensual distribution of intimate images is a degrading and dehumanising practice that violates personal privacy and dignity. It is a form of abuse, and should be labelled as such.” To read more see the Western Australian Parliament’s Hansard.
The WA Police have already charged someone under this legislation and he is due to face the Fremantle Magistrates Court later this month. We will keep you posted on developments in that case.
What conduct is criminal?
If you receive an intimate image from say your friend, or partner, or bestie, you are not allowed to on-send that image without your partner or friend, or bestie’s consent. For example, Sharon sent an intimate image of herself to Makayla – they are both best friends – Makayla decides that Sharon looks so good she will on-send the intimate image to Ruth – Ruth receives the intimate image – the problem is that Sharon has not consented to Makayla on-sending the intimate image to Ruth and therefore has probably committed an offence.
What do the terms “engaged in a private act” and “intimate image” mean in the legislation?
Engaged in private act is specific and means: a state of undress; using the toilet, showering or bathing or engaged in a sexual act.
Intimate image includes but is not restricted to a person’s genital area or anal area whether bare or covered by underwear; the breasts of the person whether bare or covered by underwear and this includes females and transgender persons and an image that has been created or altered to appear as any of the above.
Engaged in a private act speaks for itself, the difficulty is with intimate images. One needs to be very careful in assessing whether, in fact, the image is intimate or something else. You may like to consider what “something else” might be – it’s true: “you can’t define pornography but you know it when you see it”.
What does “distribution” mean?
Distribute an intimate image means: Communicating, exhibiting, selling, sending, supplying, offering or transmitting to a person other than themselves or the person depicted in the picture; making the image available for access by electronic means; entering into an agreement or arrangement to do anything referred to above.
Are there any criminal defences?
The main defence is obviously consent – but the consent given applies strictly to the one image and the one occasion – just because someone sent you an image of them half-naked and then gives you consent to on-send that image to a third party does not mean that the person’s consent applies to another image, or to future on-sending.
Apart from the defence of consent, the other defences available are technical in nature, such as distribution for genuine scientific, educational or medical purposes; necessary for legal proceedings. The person who distributed the image – did so for media activity purpose and did not intend to cause any harm and reasonably believed the distribution to be in the public interest. A reasonable person would consider the distribution acceptable because the nature and content of the image; the circumstances in which the image was distributed; the age, mental capacity vulnerability or other relevant circumstances of the depicted person; the degree to which the accused’s actions affect the privacy of the depicted person and any other relevant matter.
When will the police charge a person?
It is ultimately the police acting on a complaint who will decide whether to charge you or not. There are two questions to consider: 1) is the image an intimate image?; and 2) was this image distributed? Further consideration is of course whether consent was involved and the difficulties surrounding proving or disproving consent.
What are the penalties?
If convicted of distributing an intimate image you can face either summary judgement in the Magistrates Court of a fine of up to $18,000 or imprisonment up to 18 months. In all the circumstances, lower-end offending would stay in the Magistrates Court. In the case of more serious offending the offender would be sent to the District Court where on conviction the person faces imprisonment of up to 3 years.
Summary of the laws of revenge porn in Western Australia
In the world in which we live Social Media has simply taken over people’s lives. The ones at most risk are children as young as 10 and 11 years, through to teenagers and people in their mid to late 20s. But in reality revenge porn can be perpetrated by someone of any age and can equally affect anyone of any age.
The introduction of smart phones and instant communication platforms such as Snapchat and Instagram makes it easier for someone on the spur of the moment to take an intimate photo and share that photo on a social media platform.
Dramatic advances in hand held devices and the ability to distribute intimate images have created a new set of criminal offences in society. In the old days a person could only rely on simple photographs distributed by post or hand delivered to 3rd parties.
Today it is much easier to not only capture the image in digital form but to distribute that image to thousands and thousands of individuals all over the World.
Do you want to know more about the criminal laws governing the distribution of intimate images or other topics like in revenge porn?
If you have been charged with distributing an intimate image/s then call one of our lawyers now on 0422656589 to discuss your case.
DISCLAIMER
The above represents information only and is not to be taken as providing legal advice. If you want to know more about this topic you are advised to visit our website and contact us or call one of our criminal lawyers directly on 0422656589, or speak to a lawyer of your choosing.
