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Distribute intimate image without consent

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Under Section 91Q of the Crimes Act 1900, it's illegal to intentionally distribute an intimate image of someone without their consent, especially if aware or uncertain about their non-consent. Likewise, Section 91Q of the Crimes Act imposes the same maximum penalty on anyone intentionally distributing an intimate image of another person without their consent while being aware or reckless about the lack of consent. "Distribute" encompasses sending, exhibiting, or making available for viewing by any means, including electronically. An "intimate image" includes pictures of a person's private areas or during private acts where privacy is typically expected, altered images depicting private areas or private acts where privacy is anticipated. "Private parts" refer to

  • Genital or anal regions, clothed or not,
  • Breasts of females, including transgender or intersex identifying as female, irrespective of their developmental state.
A "private act" covers scenarios like undressing, restroom activities, uncommon public sexual acts, or similar situations where privacy is usually expected. Section 910 defines "consent" as willingly agreeing to the distribution. Consent isn't valid if the individual is under 16, lacks cognitive ability to consent, was unconscious or asleep, was threatened or unlawfully detained. Noting, these aren't the only conditions affecting consent.  

Frequently Asked Questions

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To secure a conviction for distributing an intimate image without the necessary consent, the prosecution is tasked with conclusively demonstrating the following components of the offence:
1. The defendant disseminated an intimate image of another individual,
2. The defendant carried out this action with deliberate intent,
3. The distribution took place without securing the depicted individual’s consent, and
4. The defendant acted either with full knowledge of the depicted individual’s lack of consent or with indifference to their consent status.

If the prosecution can’t substantiate each of these aspects to the required requirements, the case against the defendant will fall apart.

Section 91T of the Act states that a person isn’t culpable for distribute an intimate image without consent if:

  • The action was undertaken for authentic medical or scientific reasons,
  • The act was performed by a law enforcement officer for legitimate law enforcement purposes,
  • The act was mandated by a court or was justifiably essential for legal proceedings,
  • Given the nature and content of the image, circumstances of its recording, the age, intellectual ability, vulnerability, or other pertinent aspects of the person in the image, the impact on the privacy of the depicted person, and the relationship between the defendant and the depicted person, a reasonable individual would deem the act acceptable.

Beyond establishing every aspect of the offence, and the aforementioned exceptions, the prosecution also bears the responsibility to refute any of these defences that we may introduce:

  • Duress: being under threat or compulsion,
  • Necessity: acting to prevent imminent harm,
  • Self-defence: acting to protect oneself or another.

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