Criminal Lawyers for Recording an Intimate Image Without Consent | Section 91P Crimes Act 1900

Recording an intimate image without consent is an offence under section 91P of the Crimes Act 1900 (NSW).

The section states that a person is guilty of the offence if he or she:

• Records an intimate image of another person,
• Does so intentionally,
• Does so without the consent of the other person, and
• Does so knowing the other person did not consent, or being reckless as to whether the other person consented or not.

‘Record’ means to record, or take or capture an image by any means.

An ‘image’ means a still or moving image, whether or not altered.

An ‘intimate image’ is:

• 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’ are:

• 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.

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

• He or she is 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 engaged in any other like activity, and
• The circumstances are such that a reasonable person would reasonably expect to be afforded privacy.

Section 910 of the Act outlines the meaning of consent.

The section states that a person consents to the recording of an intimate image if he or she freely and voluntarily agrees to the recording of the intimate image.

It further states a person does not consent if he or she:

• Is under the age of 16 years or does not otherwise have the capacity to consent, including due to cognitive incapacity, or
• Does not have the opportunity to consent because the person is unconscious or asleep, or
• Consented because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
• Consented because the person was unlawfully detained.

This section makes clear that the above grounds are not the only ones which can be considered when determining whether a person consented.

A prosecution for recording an intimate image without consent cannot be commenced against a person under the age of 16 years without the approval of the Director of Public Prosecutions.

The maximum penalty for recording an intimate image without consent is an offence is 3 years in prison and/or 100 penalty units.

However, is important to bear in mind that this is the maximum sentence that can be imposed, and that the court can apply any of the following penalties for the offence:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• A shorter prison term

An intensive correction order is not available if the person who was being recorded was under the age of 16 years.

For a person to be found guilty of recording an intimate image without consent, the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond reasonable doubt:

• That the defendant recorded an intimate image of another person,
• Did so intentionally,
• Did so without the consent of the other person, and
• Did so knowing the other person did not consent, or being reckless as to whether the other person consented or not.

The prosecution will fail if it cannot prove each of these elements to the required standard.

Section 91T of the Act provides that a person is not guilty of recording an intimate image without consent if:

• 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 for the purpose of legal proceedings, or
• a reasonable person would consider the conduct acceptable, having regard to the nature and content of the image, the circumstances in which it was recorded, the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image, the degree to which the actions affect the privacy of the person depicted in the image, and the relationship between the defendant and person depicted.

In addition to the requirement to prove each element of the offence, and the outlined exceptions to the offence, the prosecution must disprove any of the following defences if properly raised:

• Duress, which is where you were threatened or coerced,
• Necessity, where the act was necessary to avert danger, and
• Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

Before you can be found guilty of recording an intimate image without consent, the prosecution must prove beyond reasonable doubt that you:

• Recorded an intimate image of another person,
• Did so intentionally,
• Did so without the consent of the other person, and
• Did so knowing the other person did not consent, or being reckless as to whether the other person consented or not.

There are a number of ways to defend charge, including raising the fact that:

• The prosecution cannot prove you recorded an intimate image of another person,
• The prosecution cannot prove you did so intentionally,
• The prosecution cannot prove the other person did not consent,
• The prosecution cannot prove you knew the other person did not consent, or were reckless as to whether the other person consented or not,
• An exception to the offence applies, and
• You raise a valid legal defence which the prosecution is not able to disprove beyond reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing.

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

1. Proven Track Record of Exceptional Results

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   Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

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   We have the best and most comprehensive client review record of any law firm in Australia.

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   For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

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   From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

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8. Accredited Specialists

   Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

   All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

   An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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9. Results-Focused Law Firm
   

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10. Team of Lawyers Behind You
    

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    • Parramatta, opposite the Justice Precinct carpark,
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    • Sutherland.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

Section 91S of the Crimes Act 1900 empowers a court who finds a person guilty of an offence under section 91P (recording an intimate image without consent) or 91Q (distributing an intimate image without consent) to order that the person takes reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed within a specified time period.

A person who fails to take this steps can face a maximum penalty of 2 years in prison and/or 50 penalty units, which is currently equivalent to $5,500.