According to Section 91P of the Crimes Act 1900 (NSW), it's illegal to intentionally record someone's intimate image without their consent, especially when aware or indifferent to their non-consent.
Section 91P of the Crimes Act now renders it an offence punishable by a maximum of 3 years' imprisonment and/or a fine of $11,000 for intentionally recording an intimate image of another person without their consent while being aware or reckless about the lack of consent.
The term "record" covers all ways of capturing an image. An "image" can be stationary or moving and includes altered versions. An "intimate image" depicts:
"Private parts" refer to:
Section 910 defines "consent" as willingly agreeing to the recording. Consent isn't valid if the individual is under 16, lacks cognitive ability to consent, is unconscious or asleep or was threatened or unlawfully detained. Notably, these aren't the only conditions affecting consent.
What does the Prosecution have to prove?
To secure a conviction for recording an intimate image without consent, the prosecution must unequivocally demonstrate the following aspects of the offence: 1. The defendant captured an intimate image of another individual, 2. Acted with intent in doing so, 3. Proceeded without the depicted person's permission, and 4. Was aware that the individual didn't give consent, or was indifferent 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.
What are the exceptions and defences to the offence?
Section 91T of the Act states that a person isn't culpable for recording an intimate image without consent if:
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:
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