Thanks to modern technology, the ease with which a person may record and share intimate images at the click of a button is a growing concern.
On 23rd May 2017, State Parliament introduced the Crimes Amendment (Intimate Images) Bill 2017, detailing offences for the non-consensual recording and distribution of intimate images. The Bill was passed in parliament without amendment, and came into effect on 25th August 2017.
This article considers the prevalence of recording and sharing intimate images within the context of domestic violence and family law, assesses the ability of the current criminal law to address these issues, and outlines the new offences.
Domestic Violence and Family Law Proceedings
Domestic Violence is a serious issue confronting men and women from various backgrounds, involving acts of physical, sexual and/or emotional abuse stemming from a personal relationship between the victim and their offender.
Emotionally abusive relationships are characterised by one person controlling and manipulating their partner. In a world of social media and smart phones, perpetrators often blackmail their victims by threatening to share or distribute intimate images of their partners, leaving the victim feeling as though they are trapped in the relationship.
In Family Law, the emotional toll of a relationship breakdown may lead some people to express their anger, hurt and frustrations through social media platforms. Worse still, parties may embark on a ‘smear campaign’ against the other person, distributing intimate images of their former partner that may have once been recorded with consent.
The Family Court undoubtedly condemns such conduct, however the majority of family law matters are settled outside of court. Some may threaten to distribute intimate images of their former partner to gain leverage over them when negotiating property settlements, producing an unfair result. The repercussions where children are involved may indeed be far worse.
A ‘Gap’ in the Law?
While there are certain provisions under Family Law to protect separating parties exposed to violence in addition to Apprehended Domestic Violence Orders, the existing criminal offences for unlawful filming had applied only in limited circumstances, where the recording is done for the purposes of sexual arousal or gratification.
The new legislation aims to provide an effective criminal law response to the non-consensual recording and/or distribution of intimate images, motivated by revenge or intended to embarrass, humiliate or control the victim.
The proposed offences:
The legislation proposes 3 offences;
To intentionally
- record
- distribute, or
- threaten to record or distribute,
an intimate image of another person, without that person’s consent.
- ‘Intimate Image’ are photos and video recordings, whether altered or not, which depict another person in circumstances where a person would reasonably expect privacy, including acts of a sexual or non-sexual nature such as showering.
- ‘Consent’ means that the person freely and voluntarily agrees to the recording of the intimate image, as well as the distribution of that image. Consent previously given does not mean the person consents to a subsequent recording on another occasion. Also, a person cannot consent to another person recording an intimate image of them in some circumstances, e.g. if they are under 16 years, or are asleep/unconscious.
- ‘Distribution’ is broadly defined, and includes texting, emailing and making available for viewing by another person.
The distribution provisions here appear to specifically offer protection for those who may have previously recorded and/or distributed intimate images intended for their partner’s personal viewing only, who have then shown the image to another person or distributed it in some way.
- ‘Threatening’ to record or distribute an intimate image constitutes an offence regardless of whether any such images actually exist.
This provision does not require the offence to have actually occurred, and serves to address the issue discussed above, regarding those being blackmailed in domestic violence relationships or family law matters.
The Penalty
The new offences carry maximum penalties of three years imprisonment, and/or substantial fines, and this maximum penalty applies across all three offences, including where the conduct was threatened, though not carried out.
The legislation also gives power to the court to order an offender to remove, retract, recover, delete or destroy an intimate image the person unlawfully recorded or distributed.
If you, or someone you know, is in an abusive relationship or has been a victim to any threats or acts as described above, please contact the NSW Domestic Violence Line on 1800 65 64 63 (24 hours).
Additionally, please contact our offices on 9525 8100 for Legal Assistance, and speak with one of our experienced Family Law Solicitors.