Record intimate image without consent

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:

• An individual's private areas,
• An individual in private acts where privacy is expected.

"Private parts" refer to:

• Genital or anal areas, irrespective of clothing,
• Breasts of females, including transgender or intersex identifying as female.
• A "private act" covers situations like undressing, bathroom activities, or uncommon public sexual acts, where privacy is typically expected.

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:

• 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.