Unauthorised recording of intimate images 

As per section 91P of the Crimes Act 1900 (NSW), recording an intimate image without obtaining consent constitutes a criminal offence.

This section sets out the criteria for a person to be considered guilty of this offence, which includes the following elements:

1. Recording an intimate image of another person.
2. Doing so intentionally.
3. Carrying out the recording without the consent of the other person.
4. Being aware that the other person did not consent to the recording, or acting recklessly regarding their consent.

The term ‘record’ includes capturing or obtaining an image through any available means.

The term ‘image’ refers to both still and moving images, irrespective of any alterations made to them.

An ‘intimate image’ pertains to:

1. An image of a person’s private parts or of a person involved in a private act, within circumstances where a reasonable expectation of privacy exists.
2. An image altered to appear as if it shows a person’s private parts or a person involved in a private act, under circumstances wherein a reasonable person would expect privacy.

‘Private parts’ include a person’s genital area or anal area, whether exposed or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, regardless of sexual development.

A person is considered engaged in a ‘private act’ if:

1. They are in a state of undress.
2. They are using the toilet, showering or bathing.
3. They are involved in a sexual act not ordinarily performed in public, or any other similar activity.
4. The circumstances are such that a reasonable person would reasonably expect privacy.

The meaning of consent is explained in section 910 of the Act, indicating that a person consents to the recording of an intimate image if they willingly and voluntarily agree to it.

However, consent is not valid if:

1. The person is under 16 years of age or lacks the capacity to consent due to cognitive incapacity.
2. The person is unconscious or asleep, thereby incapable of providing consent.
3. Consent was obtained through threats of force or terror directed at the person or someone else.
4. The person consented under unlawful detention.

It is important to note that the above grounds are not exhaustive, and other factors may also be considered while determining whether consent was provided.

For individuals under 16 years of age, commencing a prosecution for recording an intimate image without consent necessitates approval from the Director of Public Prosecutions.

Under section 91P of the Crimes Act 1900 (NSW),
(1) A person 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, shall be deemed to have committed an offence.

Maximum penalty: The offence carries a penalty of 100 penalty units and/or imprisonment for up to 3 years.

(2) For the initiation of a prosecution against an individual below the age of 16 years for an offence under this section, the approval of the Director of Public Prosecutions is required.

The offence of recording an intimate image without consent carries a maximum penalty of 3 years imprisonment and/or 100 penalty units.

It is crucial to understand that the court exercises its discretion in determining the appropriate penalties for this offence.

It is important to note that an intensive correction order is not available if the person recorded without consent was under the age of 16 years.

Please be advised that this information is general and not intended as legal advice. For personalised guidance tailored to your specific case, we strongly recommend consulting with our experienced lawyers.

To convict a person for recording an intimate image without consent, the prosecution bears the onus of proving, beyond reasonable doubt, each essential ‘elements’ or component of the offence:

1. The defendant recorded an intimate image of another person.
2. The act was done intentionally.
3. The act of recording took place without the explicit consent of the other person.
4. The defendant had knowledge of the other person’s non-consent, or they acted recklessly in relation to whether consent was given or not.

In the absence of establishing any of these elements to the requisite standard, the case will not result in a conviction.

Section 91T of the Act provides exemptions where a person is not considered guilty of recording an intimate image without consent:

1. The conduct was undertaken for genuine medical or scientific purposes.
2. The conduct was carried out by a law enforcement officer for genuine law enforcement purposes.
3. The conduct was necessary as required by a court or for the purpose of legal proceedings.
4. The conduct would be deemed acceptable by a reasonable person, taking into account factors such as the nature and content of the image, the circumstances surrounding its recording, the age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image, the level of privacy invasion upon the person depicted, and the relationship between the defendant and the person depicted.

In addition to establishing each element of the offence and taking into account the exceptions mentioned above, the prosecution is duty-bound to refute any of the following legal defences if they are validly raised:

1. Duress: If it can be demonstrated that you were threatened or coerced into committing the act against your will.
2. Necessity: If it can be proven that the action was necessary to avert harm or danger.
3. Self-defence: If it can be shown that the act was taken in defence of yourself or another individual.

The prosecution carries the responsibility to disprove these defences beyond any reasonable doubt.

To be convicted of recording an intimate image without consent, the prosecution bears the burden of proving, beyond reasonable doubt, that you committed the following acts:

1. Recorded an intimate image of another person.
2. Acted intentionally in doing so.
3. Did so without the consent of the other person.
4. Had knowledge that the other person did not consent, or acted recklessly regarding their consent.

However, there are several potential defences to this charge, which may include raising the following points:

1. Insufficient evidence presented by the prosecution to prove that you recorded an intimate image of another person.

2. Lack of proof that you acted with intention in recording the image.
3. Failure by the prosecution to demonstrate that the other person did not provide consent.
4. Lack of evidence supporting the claim that you were aware of the other person’s non-consent or acted recklessly in this matter.
5. The application of an exception to the offence.
6. Presentation of a valid legal defence that the prosecution cannot disprove beyond reasonable doubt.

If any of these factors are successfully established, you must be deemed not guilty of the offence.

An experienced lawyer can submit written representations to the prosecution, aiming to have the case against you withdrawn. In the event that the case proceeds to a defended hearing, they will vigorously fight for its dismissal in court.

Please be advised that this information is general and not intended as legal advice. For personalised guidance tailored to your specific case, we strongly recommend consulting with our experienced lawyers.

If the prosecution’s evidence is compelling, you should carefully consider pleading guilty to the offence. Prior to the sentencing stage, your lawyer will explore options such as making representations to the police for a reduced charge or withdrawal, or proposing a facts sheet to mitigate the severity of the offence.

To prepare for sentencing, a subjective material bundle is compiled which consists of an apology letter, character references and relevant documents from a counsellor or healthcare professionals.

By effectively presenting these materials and making persuasive verbal submissions in court, our primary objective is to secure the most lenient penalty possible.

An early guilty plea may result in a sentence discount of up to 25%, resulting in a less severe penalty.

Additionally, opting for an early guilty plea is more cost-effective and saves time and stress associated with a defended hearing or trial.

Please be advised that this information is general and not intended as legal advice. For personalised guidance tailored to your specific case, we strongly recommend consulting with our experienced lawyers.

Under Section 91S of the Crimes Act 1900, a court has the authority to issue an order requiring a person found guilty of an offence under Section 91P (recording an intimate image without consent) or 91Q (distributing an intimate image without consent) to take reasonable measures within a specified timeframe to remove, retract, recover, delete, or destroy any recorded or distributed intimate image. This legal provision aims to protect the privacy and dignity of individuals and provides a mechanism to enforce the removal of such non-consensual intimate content.

Failure to comply with this order can result in a maximum penalty of 2 years in prison and/or 50 penalty units, which currently amounts to $5,500.

In short, if you find an intimate image of yourself that has been recorded or distributed without your consent, you can seek legal recourse to have it removed, and the court can order the responsible party to take necessary actions to delete or destroy the image.