The Offences of Recording and Distributing Intimate Images Without Consent

A former Liberal staff member who filmed himself masturbating on the desk of a female member of parliament has reported to police that he was the victim of revenge porn.

The staff member, Nathan Winn, was terminated from his position at Parliament House after the videos aired on national television.

He recently contacted police alleging he is the victim in the matter, and police are yet to decide whether to bring formal charges.

One of Mr Winn’s former superiors, Federal Coalition MP Warren Entsch, says the video was shared by Mr Winn to Gavin Cuddy, but then found its way to Channel 10 after Winn formed a relationship with another man.

Mr Entsch says that while Mr Winn’s conduct was ‘inappropriate and stupid’, it was only ever meant to be a ‘private joke’ between him and Mr Cuddy.

Under the ACT’s Crimes (Intimate Image Abuse) Amendment Act 2017, it is illegal to distribute an intimate image of a person without their consent.

The maximum penalty for anyone found guilty is three years in prison.

Offences of recording or distributing intimate images without consent

In 2017, laws were introduced in New South Wales to update to the state’s Crimes Act of 1900.

The Crimes Amendment (Intimate Images) Act of 2017 inserted the following offences into the Crimes Act 1900 (NSW) at that time:

• Recording an intimate image without consent – section 91P
• Distributing an intimate image without consent – section 91Q
• Threatening to record an intimate image without consent – section 91R(1)
• Threatening to distribute an intimate image without consent – section 91R(2).

The maximum penalties for each of those offences is 3 years in prison and/or $11,000 fine.

An ‘intimate image’ is defined 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.

The same section defines ‘private parts’ as 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.

‘Engaged in a private act’ means:

• in a state of undress,
• using the toilet, showering or bathing,
• engaged in a sexual act of a kind not ordinarily done in public, or
• any other like activity.

Under the legislation, New South Wales courts are empowered to issue ‘take down’ orders which compel offenders to take “reasonable steps to recover, delete or destroy images taken or distributed without consent”.

Disobeying this order could see an additional two years in prison and $5500 fine issued.

Prevalence of the offence

According to a survey of 4,122 Australians conducted for the Office of the eSafety Commissioner in 2017, one in ten Australian respondents had experienced a nude or sexual image of themselves being distributed to others or posted online without their consent.

Since then, other research studies suggest that the number could be as high as one in five.

Last year, during the pandemic lockdowns, when digital forms of communication and connection became central to keeping in touch with each other, the eSafety Commissioner received more than 1,000 reports of image-based abuse between March and May – more than a 200 percent increase on the average weekly number of reports they received in 2019.

At the same time, the eSafety Commissioner also received an increase in reports of ‘sextortion’ which occurs when people are blackmailed over their intimate images.

Revenge porn can have a devastating impact on victims. It is sometimes used to coercively control a current or former intimate partner or can be used as a form of bullying and harassment, or it can be used as a form of vengeance by a disgruntled partner after a relationship ends, but the effects can be devastating for victims, causing a great deal of psychological distress.