Criminal law
Intimate image and filming charges in NSW
Recording or sharing an intimate image without consent carries three years imprisonment, and so does threatening to. These charges reach far beyond what people think of as revenge pornography: a screenshot forwarded in a group chat, an image kept after a relationship ends and then sent to one person, a photograph taken with consent and shared without it. The court can also order the image taken down, which is often what matters most to everyone involved.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales.
The intimate image offences
An intimate image is one that shows a person’s private parts, or a person engaged in a private act, in circumstances where a reasonable person would reasonably expect privacy. It includes images that have been altered or digitally created to appear to show that.
| Offence | Maximum penalty |
|---|---|
| Recording an intimate image without consent | 3 years and an $11,000 fine |
| Distributing an intimate image without consent | 3 years and an $11,000 fine |
| Threatening to record or distribute an intimate image | 3 years and an $11,000 fine |
- Consent to the image being taken is not consent to it being shared. The two are separate and this is the point that catches most people
- Distribution means sending it to any person, not publishing it. One message to one recipient is enough
- Recklessness is enough. The prosecution does not have to prove you knew there was no consent, only that you were reckless as to it
- For a threat, the image need not exist. What must be proved is that you intended to cause fear that the threat would be carried out, or were reckless as to that
The court can order the image removed. Where a person is found guilty, the court can order them to take reasonable steps to remove, retract, recover, delete or destroy the image within a specified period. Failing to comply with that order is a separate offence. In many of these matters this is the outcome that actually matters, and offering to do it early rather than being ordered to changes how the matter is approached.
Voyeurism and filming offences
A separate group of offences covers observing and filming without consent, and they are commonly charged alongside or instead of the intimate image offences.
- Voyeurism, being observing a person engaged in a private act for sexual arousal or gratification, without consent
- Filming a person engaged in a private act without consent, for that purpose
- Filming a person’s private parts without consent, for that purpose, including filming under or through clothing
- Installing a device to facilitate any of the above
These carry two years, rising to five years in their aggravated form, which applies where the person filmed was under 16 or where the fabric of a building was constructed or adapted for the purpose. An attempt is treated the same as the completed offence.
Where the person depicted is a child, different and considerably more serious offences apply. More on child sexual offences and child abuse material.
Defences and issues
Consent
The person consented to the recording or the distribution. Consent to one does not establish the other, and consent given for a particular purpose or audience does not extend beyond it. Messages establishing what was agreed are the evidence that matters and they need preserving.
Not an intimate image
Whether the image shows private parts or a private act, and whether there was a reasonable expectation of privacy in the circumstances, are objective questions. An image taken in a public place, or one that shows less than the fact sheet asserts, may not meet the definition.
You did not distribute it
Shared accounts, shared devices, forwarding by someone else, and material recovered from a device without evidence of who sent it. Attribution has to be proved.
Reasonable in the circumstances
A defence applies where a reasonable person would consider the conduct acceptable having regard to the circumstances, including the nature and content of the image, the circumstances in which it was recorded or distributed, the age and capacity of those involved, and the degree to which the conduct affects the privacy of the person depicted.
Genuine purpose
Defences apply for conduct for a genuine medical or scientific purpose, for a genuine law enforcement purpose, or as required for legal proceedings.
No intention to cause fear
On a threat charge, what has to be proved is that you intended to cause fear the threat would be carried out, or were reckless as to that. Words said in an argument without that intention are a different matter.
Where the person depicted was under 16 at the time, the consent defence does not operate in the way it does for adults, and much more serious charges may apply. This is the single most important thing to establish at the outset.
What usually comes with these charges
- An apprehended violence order. These matters almost always arise between people who know each other, and a provisional order is usually made at the same time. The AVO frequently has more immediate effect on your life than the charge. More on defending an AVO
- A domestic violence classification. Where the parties are or were in a domestic relationship, the matter is recorded as domestic violence related, which carries its own consequences. More on domestic violence offences
- Related charges, most commonly intimidation or stalking, or using a carriage service to menace or harass, which is a Commonwealth offence. More on intimidation and stalking
- Device seizure. Phones are taken and examined, and what else is found on them frequently produces further charges
- Registration, in defined circumstances where the person depicted was under 18
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. Realistically available at the lower end of this area, particularly on a first offence.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews.
Removal of the image, done promptly and verifiably rather than after an order is made, is the single most useful thing that can be put before the court in these matters. So is genuine insight into why it happened, which in the majority of these cases is the aftermath of a relationship ending badly.
Common questions
She sent me the photo herself. How can it be an offence to share it?
Because consent to an image being taken or sent to you is not consent to it being passed on. The two are legally separate, and this is the misunderstanding behind most of these charges. Distribution means sending it to any person, so one message to one friend is enough.
I only sent it to one person.
That is still distribution. The offence does not require publication or an audience. The number of recipients affects the sentence, not whether the offence is made out.
I said it in an argument. I never intended to do it.
On a threat charge the prosecution has to prove you intended to cause fear that the threat would be carried out, or were reckless as to that. Words said in the heat of an argument, with no such intention, are a genuine issue. The surrounding messages usually decide it, so preserve them.
Can I be made to take the image down?
Yes. On a finding of guilt the court can order you to take reasonable steps to remove, retract, recover, delete or destroy the image, and not complying is a separate offence. Doing it voluntarily and early, with proof, is far better than being ordered to.
Will I get a criminal record?
Not necessarily. A dismissal without conviction is realistically available at the lower end of this area, particularly on a first offence where the image has been removed and there is genuine insight. It is not automatic and it depends on what is put before the court.
The other person was under 18.
Then the position is entirely different and much more serious, and the consent provisions do not operate as they do for adults. Charges under the child abuse material provisions may apply, and so may registration. Tell us this at the outset because it changes everything about how the matter is approached.
Police have taken my phone.
Expect a full forensic examination, and expect anything else found on it to be considered. Do not delete anything, which is a separate offence and is always detected. Get advice before any interview.
What should I bring to a first appointment?
The court attendance notice, the police fact sheet, any AVO, and the full message history with the other person, not just the part police have. If the image has already been deleted or removed, bring whatever proves when and how.
The messages decide these cases
What was agreed, what was said, and when, is almost always in a chat thread that only you have. Preserve it before anything is lost, and speak to us before you are interviewed.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.