Distribute Intimate Image Without Consent

In New South Wales, it is an offence to distribute intimate images without consent. The maximum penalties for this charge is 3 years imprisonment and/or a $3,300 fine or 4 years imprisonment and/or a $4,400 fine in circumstances of ‘aggravation’. 

What is Recording an Intimate Image without Consent?

The legislation describes the offence of ‘Distribute Intimate Image without Consent’ under Section 72C of the Crimes Act 1900 (NSW) which states that:

1. A person commits an offence if

1. The offender distributes an intimate image of another person, and
2. The offender,

1. Knows the other person does not consent to the distribution, or
2. Is reckless about whether the other person consents to the distribution.

Pursuant to Section 72EA(2) of the Crimes Act 1900 (NSW), the offence is an aggravated offence if the offence involves family violence. 

The following acts might constitute Distribute Intimate Image without Consent:

• Taking pictures of your partner in their underwear whilst they are sleeping and posting it on social media.
• Filming someone whilst they are naked without their explicit consent and sending it to a group chat via text message.
• Showing your work colleague a video of your naked partner that you took without your partner’s knowledge.

What Must Be Proven?

For a person to be found guilty of Distribute Intimate Image without Consent, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you intentionally distributed an intimate image of a person; and
• That the distribution was done without the other person’s consent; and
• You knew that the person did not consent or was reckless about their consent.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This is a Table 2 offence which means that the Director of Public Prosecutions (DPP) or the defence can elect to have the matter dealt with in the District Court. If no election is made, it will be dealt with in the Local Court.

Possible Defences

The following defences may be available for a Distribute Intimate Image without Consent charge:

• That the person being recorded provided their free and explicit consent to having the image distributed
• That the image was not intimate in nature
• Reasonable mistake as to the distribution of the intimate image
• Duress 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

A Court can impose any of the following penalties for a Distribute Intimate Image without Consent charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job and personal relationships. Moreover, a conviction for an offence of this nature can completely rule out certain career paths such as teaching and a range of government employment options. 

Will I go to Gaol?

There is a possibility you may receive a gaol sentence up to 3 years imprisonment or 4 years imprisonment depending on the circumstances. It is important that you get expert advice to assist you, if you are facing this charge. 

What should I do if I received consent from my partner to record an intimate image, but now they are saying they never consented?

If you find yourself in this situation, please contact Armstrong Legal immediately.

What if I just threatened to distribute the intimate image, but did not actually distribute it?

It is a separate offence to threaten to distribute an intimate image without consent. Pursuant to Section 72E of the Crimes Act 1900, the maximum penalties are a fine of $3,300 and/or 3 years imprisonment. 

Can the Court impose any other orders, other than a gaol sentence or a fine?

If you are found guilty of this offence, the Court may ask you to remove, retract, delete or destroy any image recorded without a time period specified by the Court. If you do not adhere to this order, you may be charged with a further offence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.