Published by Geoff Harrison | 6 July 2023
Record intimate image without consent
91P RECORD INTIMATE IMAGE WITHOUT CONSENT
(1) A person who intentionally records an intimate image of another person--
(a) without the consent of the person, and
(b) knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording,
is guilty of an offence.
Maximum penalty--100 penalty units or imprisonment for 3 years, or both.
(2) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.
91Q DISTRIBUTE INTIMATE IMAGE WITHOUT CONSENT
(1) A person who intentionally distributes an intimate image of another person--
(a) without the consent of the person, and
(b) knowing the person did not consent to the distribution or being reckless as to whether the person consented to the distribution,
is guilty of an offence.
Maximum penalty--100 penalty units or imprisonment for 3 years, or both.
(2) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.
91R THREATEN TO RECORD OR DISTRIBUTE INTIMATE IMAGE
(1) A person who threatens to record an intimate image of another person--
(a) without the consent of the other person, and
(b) intending to cause that other person to fear that the threat will be carried out,
is guilty of an offence.
Maximum penalty--100 penalty units or imprisonment for 3 years, or both.
(2) A person who threatens to distribute an intimate image of another person--
(a) without the consent of the other person, and
(b) intending to cause that other person to fear that the threat will be carried out,
is guilty of an offence.
Maximum penalty--100 penalty units or imprisonment for 3 years, or both.
(3) A threat may be made by any conduct, and may be explicit or implicit and conditional or unconditional.
(4) A person may threaten to distribute an image whether or not the image exists.
(5) In proceedings for an offence against this section, the prosecution is not required to prove that the person alleged to have been threatened actually feared that the threat would be carried out.
(6) A prosecution of a person under the age of 16 years for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.
91O MEANING OF CONSENT IN INTIMATE IMAGE OFFENCES
(1) This section applies to all offences under this Division.
(2) A person consents to the recording of an intimate image if the person freely and voluntarily agrees to the recording of the intimate image.
(3) A person consents to the distribution of an intimate image if the person freely and voluntarily agrees to the distribution of the intimate image.
(4) A person who consents to the recording or distribution of an image on a particular occasion is not, by reason only of that fact, to be regarded as having consented to the recording or distribution of that image or any other image on another occasion.
(5) A person who consents to the distribution of an image to a particular person or in a particular way is not, by reason only of that fact, to be regarded as having consented to the distribution of that image or any other image to another person or in another way.
(6) A person who distributes an image of himself or herself is not, by reason only of that fact, to be regarded as having consented to any other distribution of the image.
(7) A person does not consent to the recording or distribution of an intimate image--
(a) if the person is under the age of 16 years or does not otherwise have the capacity to consent, including because of cognitive incapacity, or
(b) if the person does not have the opportunity to consent because the person is unconscious or asleep, or
(c) if the person consents because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents because the person is unlawfully detained.
(8) This section does not limit the grounds on which it may be established that a person does not consent to the recording or distribution of an intimate image.
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