The Offence of Threatening to Distribute Intimate Images in NSW

National Rugby League (NRL) player Paul Carter has strenuously denied allegations that he leaked intimate images of former Sydney Roosters teammate Dylan Napa as part of an extortion campaign.

It has been reported that Mr Napa and his lawyers met with the NRL Integrity Unit to discuss information that Carter received threats by way of text message to gradually publish increasingly lewd videos of Napa engaging in sexual acts unless requested funds are provided.

One of the messages is said to read, “Each day or two that he doesn’t get paid his asking money he is then releasing a new video, and has deliberately started with the tame ones and threatening to build up to some pretty nasty ones”.

It is reported that the former teammates were part of a WhatsApp player group and fell-out 18 months ago.

Mr Carter is reported to have stated, “I heard the allegations from people close to me, who messaged me in disbelief asking, ‘What’s going on here?’ I was in shock”.

Investigations into the matter are continuing.

The law in NSW

The incident has triggered debate about the laws relating to the non-consensual distribution of images and blackmail in our state.

Recording or distributing intimate images without consent

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

• 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), and
• 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

Definitions

An ‘intimate image’ is defined by section 91N 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, whether or not the breasts are sexually developed.

It defines a ‘engaged in a private act’ as:

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

Required ‘Mens rea’ (or mental state)

The required mental state for offences under section 91P and 91Q is that the defendant intended to record or distribute the images, or was reckless in that regard.

The required state for section 91R is that the defendant intended to cause the other person to fear that the threat would be carried out, and it is irrelevant whether the image actually existed.

Statutory defences

Section 91T provides that an offence under section 91P or 91Q does not occur where:

• the conduct was for a genuine medical or scientific purpose, or
• the conduct was by a law enforcement officer for a genuine law enforcement purpose, or
• the conduct was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings, or
• a reasonable person would consider the conduct acceptable, having regard to each of the following (to the extent relevant) the nature and content of the image, the circumstances surrounding the act, the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, the degree to which the actions affect the privacy of the person depicted, and the relationship between the complainant and defendant.

Rectification orders

Section 91S of the Act empowers a court to order a person who is found guilty under section 91P or 91Q to take reasonable steps to remove, retract, recover, delete or destroy any intimate image recorded or distributed.

The maximum penalty for a failure to comply is 2 years in prison and/or a fine of $5,500.

The Offence of Blackmail in NSW

The situation where a person threatens to publish material unless paid a sum of money or otherwise given a material benefit may also be captured by the offence of ‘blackmail’, which is contained in section 249K of the Crimes Act.

The section prescribes a maximum penalty of 10 years’ imprisonment for any person who makes an unwarranted demand with menaces with the intention of:

• obtaining a gain or of causing a loss, or
• influencing the exercise of a public duty.

A demand is ‘unwarranted’ unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand.

The definition of ‘menaces’ includes:

• an express or implied threat of any action detrimental or unpleasant to another person, and
• a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.

If you have been accused of an extortion-type offence and are going to court, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first consultation.