Threaten to Record or Distribute Intimate Image (Revenge Porn)

In New South Wales, it is an offence to threaten to record or distribute intimate images without consent. The maximum penalties for this charge are 3 years imprisonment and/or a $1,100 fine.

What is Threatening to Record or Distribute Intimate Image without Consent?

The legislation describes the offence of ‘Threaten to Record or Distribute Intimate Image without Consent’ under Section 91R of the Crimes Act 1900 (NSW) which states that:

1 – A person who threatens to record intimate image or audio material of another person – 

1. 1. Without the consent of the other person, and
   2. Intending to cause that other person fear that the threat will be carried out,

Is guilty of an offence.

1A) – A person is guilty of an offence if the person threatens to – 

1. Alter an image or audio of another person so that the image or audio is intimate image or audio material
   1. Without the other person’s consent, and
   2. Intending to cause the other person fear the threat will be carried out, or
2. Create intimate image or audio material of a simulated person – 
   1. 1. Without the consent of the real person whom the image or audio is meant to represent, and
      2. Intending to cause the real person to fear the threat will be carried out

2 – A person who threatens to record intimate image or audio material of another person – 

1. 1. 1. Without the consent of the other person, and
      2. Intending to cause that other person fear that the threat will be carried out,

Is guilty of an offence.

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 intimate image or audio material whether or not the intimate image or audio material 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.

The following acts might constitute Threaten to Record or Distribute Intimate Image without Consent:

• Taking pictures of your partner in their underwear during an argument and threatening to post it on social media.
• Filming a sexually explicit conversation with someone and threatening to send it to a third party if they do not fulfill a favour for you.

What Must Be Proven?

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

• That you threatened to record or distribute an intimate image of a person without their consent; and
• That you intended the other person to fear that the threat would actually be carried out.

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 for Distribute Intimate Image without Consent

The following defences may be available for a Threaten to Record or Distribute Intimate Image without Consent charge:

• That the person being recorded provided their free and explicit consent to having the image recorded or distributed;
• That you did not intend to cause the person fear that the threat would be carried out;
• Duress.

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is possible. 

A Court can impose any of the following penalties for a Threaten to Record or 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 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 distribute an intimate image, but now they are saying they never consented?

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

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.