Record Intimate Image Without Consent

THINGS YOU NEED TO KNOW:

1. Record intimate image without consent is an indictable offence under Section 91P of the Crimes Act 1900 (NSW).
2. A number of defences against a conviction of Record intimate image without consent are available.
3. The maximum penalty available to the Court for the criminal offence of Record intimate image without consent is 3 years imprisonment and/or a fine of $11,000.
4. Record intimate image without consent matters are heard in the Local Court and District Court.

The criminal offence of Record intimate image without consent is a serious offence with severe consequences. Contact our award-winning expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may secure the best outcome for you.

WHAT IS THE CRIMINAL OFFENCE OF RECORD INTIMATE IMAGE WITHOUT CONSENT?

Section 91P of the Crimes Act 1900 (NSW) constitutes it a criminal offence for a person to intentionally record an intimate image of another person:

• Without the consent of the person, and
• Knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording.

WHAT IS AN INTIMATE IMAGE?

To best understand the criminal offence of Record intimate image without consent it is important to know what an intimate image is. Section 91N of the Crimes Act 1900 (NSW) defines an intimate image as:

• An image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
• An image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.

Private parts means a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

WHAT DOES IT MEAN TO RECORD AN INTIMATE IMAGE?

Section 91N of the Crimes Act 1900 (NSW) defines the recording of an image as record, take or capture an image, by any means.

WHAT IS THE PENALTY FOR THE CRIMINAL OFFENCE OF RECORD INTIMATE IMAGE WITHOUT CONSENT?

Section 91P of the Crimes Act 1900 (NSW) prescribes a maximum penalty of 3 years imprisonment and/or a fine of $11,000 for a person convicted of the criminal offence of Record intimate image without consent. If the matter is finalised in the Local Court, the maximum penalty available is 2 years imprisonment.

Other penalties that the court may impose for the offence of Record intimate image without consent include a Community Corrections Order (CCO), Intensive Corrections Order (ICO), Home Detention and a Good Behaviour Bond.

COURT MAY ORDER RECTIFICATION UPON CONVICTION

Section 91S of the Crimes Act 1900 (NSW) allows a court that finds a person guilty of the offence of Record intimate image without consent to order the guilty person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded by the person in contravention of the section within a period specified by the court.

A person who, without reasonable excuse, contravenes such an order is guilty of a criminal offence and is liable to a maximum term of 2 years imprisonment and/or $5500 fine.

WHAT IF THE OFFENDER IS UNDER THE AGE OF 16?

Section 91P of the Crimes Act 1900 (NSW) requires that a prosecution of a person under the age of 16 years for the criminal offence of Record intimate image without consent is not to be commenced without the approval of the Director of Public Prosecutions.

WHAT ARE THE DEFENCES AGAINST GUILT FOR THE CRIMINAL OFFENCE OF RECORD INTIMATE IMAGE WITHOUT CONSENT?

Alleged victim agreed: That the alleged victim of the offence agreed and consented to the recording of the intimate image.

DURESS: You may defend a Record intimate image without consent charge on the defence of duress, which is that you committed the offence due to a threat of death or serious harm against you or your family, with the threat being so severe that a person of ordinary firmness would be unable to resist and you could not have rendered the threat ineffective.

DID NOT COMMIT THE ACT:  That you did not commit the act that the prosecution alleges.

OTHER DEFENCES: Other defences may be available to you depending on the specific circumstances of your case. Contact Criminal Lawyers Group now so that we may analyse the defences available to you based on the circumstances of your case.

WHAT ARE SOME EXAMPLES OF THE CRIMINAL OFFENCE OF RECORD INTIMATE IMAGE WITHOUT CONSENT?

Examples of actions that may constitute the criminal offence of Record intimate image without consent include, but are not limited to:

• Recording a video of you having sexual intercourse with someone you met at the club, without the person consenting to the video.
• Taking a photo of someone in the shower without their consent.
• Recording a video of you having sexual intercourse with someone who previously consented to a prior video being recorded, but who did not consent to another video being recorded this time.

WHAT FACTORS WILL AFFECT PUNISHMENT IF CONVICTED OF THE OFFENCE OF RECORD INTIMATE IMAGE WITHOUT CONSENT?

If you are convicted of the criminal offence of Record intimate image without consent, the court may consider a number of factors that will determine the punishment you receive, including but not limited to:

• Early guilty plea
• Circumstances of the offence
• Criminal history
• Character references
• A letter of apology or affidavit demonstrating remorse
• Your likelihood of reoffending
• Any assistance you give to authorities

WHAT COURT ARE RECORD INTIMATE IMAGE WITHOUT CONSENT OFFENCES HEARD IN?

The criminal offence of Record intimate image without consent is heard and finalised in the Local Court and District Court.

Our expert criminal lawyers have a wealth of experience in obtaining the best outcomes in criminal matters across all levels of courts in NSW, including Record intimate image without consent offences in the Local Court and District Court.

WHAT ARE YOUR OPTIONS?

When facing a Record intimate image without consent charge, you have several options in court. These include:

PLEADING NOT GUILTY: Whether you are advised to plead not guilty or not, you have an inherent right to test the prosecution case by challenging the prosecution’s evidence, and fight for your acquittal. There are risks associated with this option and our experienced lawyers will always advise you of these factors.

PLEADING GUILTY: In some cases, you may be guilty of the charge, but the facts may be in issue, or you may be guilty of a lesser charge and not the charge that police have laid.

NEGOTIATE A PLEA DEAL: We may negotiate with the prosecution to request that the charge is withdrawn, downgraded or fact sheets amended, depending on the circumstances of your case.

s14 APPLICATION: There will not be a finding of guilty should a s14 order be made. You will be diverted under the Mental Health Act 2007 (NSW) for a period of 12 months. You will avoid a criminal conviction with this option.

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This page contains general information and is not to be taken as legal advice.

For quality and award-winning legal advice, contact our expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may analyse your case and secure the best possible outcome for you.