Is Sending an Unsolicited ‘Dick Pic’ a Crime in New South Wales?

Being a woman on the internet can be an unpleasant experience, particularly when pervy, socially incompetent men slide into your DMs.

An unfortunate experience for many women is receiving unsolicited and unexpected pictures of male genitalia. 

But does this common form of digital nuisance constitute a crime?

The Prevalence of “Cyberflashing”

Cyberflashing refers to the sending of an unsolicited nude or sexual image to another person without having their consent to do so.

This conduct can take many forms, from direct messages of sexually graphic material to the use of AirDrop, where images can be sent between any Apple device within a particular location, unsolicited.

Surveys have found that nearly half of young adult women have received unwanted, graphic images by men. 

Women who receive these images often describe their experience as “violating”.

This has led some parts of the world, such as the United Kingdom, to propose specific criminal offences dealing with cyberflashing.

Does Cyberflashing Constitute Obscene Exposure in NSW?

It may on first impressions seem that sending an unsolicited dick pick would constitute the offence of “obscene exposure” under section 5 of the Summary Offences Act 1988 (NSW).

However, this offence – which carries a maximum penalty of 6 months imprisonment – only applies when a person in or within view from a public place or a school, and whilst there wilfully and obscenely expose his or her person.

So, whilst an unsolicited dick pic would certainly constitute “obscene” exposure, the definition of “public place” under the Act does not apply to online communications. 

Public place is defined as any area “that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons”.

Using a Carriage Service to Menace, Harass or Cause Offence

However, an offence that could apply to instances of cyberflashing is section 474.17 of the Criminal Code Act 1995 -a piece of legislation which applies across the nation.

That offence makes clear that using a carriage service (such as the internet) to menace, harass or cause offence carries a maximum penalty of 3 years imprisonment.

The offence applies if a “reasonable person” would regard the conduct as “menacing, harassing or offensive”.

There is a strong argument the term “offensive” is broad enough to encompass unsolicited dick pics, which perhaps even in this day and age consider dick picsw that have not been asked for or expected as offending against the standards of morality, decency and propriety generally accepted by reasonable adults.

When The Sender or Recipient Is a Minor

More complex consideration come into play when the sender or receiver of an unsolicited dick pic is a minor.

Prior to 2018, a boy under the age of 18 years old who sent pictures of his genitals to another person could have been prosecuted under section 91H of the Crimes Act 1900 (NSW) for the offence of producing, disseminating or possession of child abuse material. 

This offence carries a maximum penalty of 10 years imprisonment. 

It may be noted that reforms in 2018 inserted a complete defence under section 91HA(9) of the Act in cases where the child abuse material disseminated only depicts the defendant.

Adults who receive sexual imagery of a person under the age of 18 years old will also have a defence against charge of possession of child abuse material under section 91HA(2) of the Act if their possession was unsolicited, and as soon as they became aware of its nature, they took reasonable steps to get rid of it.

Finally, an adult who sends an “indecent image” (such as pictures of their genitals) to a child under the age of 16 years old, whether solicited or not, could be charged with the offence of grooming children under section 66EB of the Act. 

This offence carries a maximum penalty of 12 years imprisonment for children under 14 years old and 10 years imprisonment in any other case.