Intimate Image and ‘Revenge Porn’ Laws: What are they & what are the penalties?

 During lockdowns resulting from the Covid-19 pandemic  people socialising online became more frequent. As a result the courts have, recently, experienced an increase in Cyber crimes.   

That has included an increase in prosecutions relating to intimate image laws in Western Australia.

The Intimate Image Laws and What they do

 Intimate image laws became effective following the commencement of the Criminal Law Amendment (Intimate Images) Act 2018 (WA) on 15 April 2019. The legislation amended the Criminal Code (WA) to bring about the following:

• Made it an offence to distribute an intimate image of a person without their consent;
• Enabled the court to make a rectification or ‘takedown’ order in relation to the image; and
• Made it a criminal offence to threaten to distribute an intimate image.

Put simply, if a person sends an intimate image of themself or an image or video of themself engaging in a private act, it is an offence for the recipient of that image or video to distribute it or to post it publicly online without the consent of that person. It is also an offence for the recipient to threaten to distribute or post the image publicly.  

The Reason for the Laws being Introduced

Prior to the laws being enacted the Western Australian Attorney General in his Second Reading Speech said 'victims of these offences experience embarrassment and humiliation, damage to reputation, employment prospects, educational attainment, interpersonal relationships and mental health issues.

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'.

The Meaning of the term 'intimate image'

An intimate image, of a person —

Means a still or moving image, in any form, that shows, in circumstances in which the person would reasonably expect to be afforded privacy —

• the person’s genital area or anal area, whether bare or covered by underwear; or
• in the case of a female person, or transgender or intersex person identifying as female, the breasts of the person, whether bare or covered by underwear; or
• the person engaged in a private act;
• And includes an image, in any form, that has been created or altered to appear to show any of the things mentioned in paragraph (a);

Engaged in a private act means —

• in a state of undress; or
• using the toilet, showering or bathing; or
• engaged in a sexual act;

The Meaning of the term 'Distribute'

A person distributes an intimate image of a person by —

• communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a person other than themselves or the person depicted in the image; or
• making the image available for access by electronic or other means by a person other than themselves or the person depicted in the image; or
• entering into an agreement or arrangement to do anything referred to above.

The Meaning of 'Consent'

Consent means a consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means.

A person who gives consent to the distribution of a particular intimate image on one occasion does not automatically consent to that image or any other image being distributed on other occasions.

A person who is under 16 years of age cannot legally consent to the distribution of an intimate image. Under Commonwealth laws, it is an offence to distribute an intimate image of a person under 18 years of age.

Sentencing

There are tough penalties that are being imposed by the court for this type of offending. In 2020 a man was sentenced to 20 months’ imprisonment by the District Court of Western Australia for threatening a former girlfriend and distributing intimate images of her without permission.

The maximum penalty for the offence if it is dealt with in the Magistrates Court is a fine of up to $18,000 or imprisonment for up to 18 months. If the offence is dealt with on in the District Court the maximum penalty is a sentence of imprisonment of up to 3 years.

Can a person be charged under the intimate image laws for sharing an intimate image of themselves?

Recently there has been significant media coverage on the texting saga relating to Tim Paine, who was the captain of the Australian cricket team.

This gives rise to the question of whether it is illegal for a person to share an intimate image of themself.

A person cannot be charged under the intimate image laws for sending an intimate image of themself. The intimate image laws relate only to sharing an intimate image of someone else without their consent. However, if a person under the age of 18 creates or shares an intimate image of themselves, that may still constitute an offence under other criminal law provisions relating to child exploitation material.  

Furthermore it is an offence to possess, send or request an intimate image of a person under the age of 18.

We Can Help

If you have been charged with a sexual offence in Perth and need representation from an experienced Criminal Lawyer, contact the Andrew Williams Criminal Law Offices without delay on (08) 9278 2575.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.