Western Australia Introduces Intimate Images Legislation

Monday 9 July 2018 @ 12.43 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 28 June 2018, the WA Attorney General, Mr Mr J.R. Quigley, introduced into the WA Parliament the Criminal Law Amendment (Intimate Images) Bill 2018 . According to the Attorney-General, the Bill implements the government’s pre-election commitment to criminalise the non-consensual distribution of intimate images, a form of image based sexual abuse. The conduct criminalised is sometimes more generally referred to as “revenge porn”, a term that may be regarded as a misnomer, as the non-consensual distribution of intimate images is a degrading and dehumanising practice that violates personal privacy and dignity and is considered a form of abuse.

The Bill in General

The Bill purports to amend the Criminal Code of WA in three ways. 

  1. it creates a new offence relating to the non-consensual distribution of intimate images;
  2. it empowers courts to make a rectification order requiring a person charged with the new offence to remove or destroy the images in question.;
  3. it ensures that existing threat offences apply to a threat to distribute an intimate image. 

In his second reading speech, the AG indicated that the Bill was developed with regard to similar recent legislation enacted in other states and territories (for example, NSW and the NT).  A detailed consultation process also took place, which included the Director of Public Prosecutions, the WA Police Force and the Commissioner for Children and Young People. The Bill also accords with the national statement of principles agreed to by the former Law, Crime and Community Safety Council on 19 May 2017.

More Specific Changes

Part 2 of the Bill amends the Criminal Code of WA as follows:

Clause 4 of the Bill inserts a new Chapter XXVA, titled “Intimate images”, into the Criminal Code of WA. The new chapter XXVA contains the new offence of "distributing an intimate image without consent" and provides for defences and exceptions to the new offence, as well as  supporting definitions and provision for “rectification orders”. The new offence is located in the proposed new section 221BD of the Criminal Code of WA, titled “Distribution of intimate image”. The offence to be established requires a distribution of an "intimate image" of another person without the consent of the person depicted in the image. The reference to an intimate image “of another person” ensures that the offence does not apply when a person distributes an image that depicts  only him or herself.  There is no requirement to prove that the accused person intended to cause any particular harm to the person depicted in the image, or that the victim suffered any particular harm or injury as the non-consensual distribution of intimate images is, of itself, an unacceptable harm. The criminality exists independently of the associated motivations and consequences.  The penalty on indictment is imprisonment for three years and the summary conviction penalty is imprisonment for 18 months and a fine of $18 000.

Intimate image” is defined in proposed new section 221BA to mean a still or moving image in any form that shows, in circumstances in which a person would reasonably expect to be afforded privacy, the person’s genital or anal area, whether bare or covered by underwear; in the case of a female person - or transgender or intersex person identifying as female - the breasts of the person, whether bare or covered by underwear; or the person engaged in a private act, which is defined separately to mean in a state of undress, using the toilet, showering or bathing or engaged in a sexual act. The concept of  "reasonable expectation-of-privacy" is an important part of the definition and  excludes from the ambit of the offence images captured in circumstances in which there is "no reasonable expectation of privacy", such as a lingerie model on a catwalk. 

It should be noted, the definition of “intimate image” also includes an image that has been created or altered to appear to show any of the things mentioned above. This is intended to encompass recent software developments that have led to the proliferation of fake pornography videos and doctored images in which a person’s face is superimposed onto another body.

The definition of “distributes” in proposed section 221BC is modeled on the existing definition of “distribute” in Chapter XXV of the Criminal Code of WA, which deals with child exploitation material. The definition includes to communicate, exhibit, sell, send, supply, offer or transmit the image, to make the image available for access by electronic or other means or to enter into an agreement; to do either of those things. The definition excludes distribution to the person depicted in the image, although such might be unlawful under other existing criminal offence provisions, for example, if it is accompanied by a threat, or forms part of a course of conduct that constitutes stalking or constitutes harassment.

The definition of “consent” provided in proposed section 221BB is modeled on the definition contained in chapter XXXI of the Criminal Code dealing with sexual offences, but with several context-specific additions, the most important being that consent be free and voluntary. Consent is not free and voluntary where it is obtained by force, threat, intimidation, deceit or any fraudulent means.

The proposed section 221BD sets out a number of defences and exclusions to the new distribution offence. It will be a defence to a charge to prove that the distribution was:

  • for a genuine scientific, educational or medical purpose; 
  • was reasonably necessary for the purpose of legal proceedings; 
  • was for the purpose of media activities and the distributor did not intend to cause harm and reasonably believed that the distribution was in the public interest; or 
  • a reasonable person would consider the distribution of the image to be acceptable having regard to a list of factors, including the nature and content of the image, the circumstances in which it was distributed, the age and vulnerability of the person depicted, and other factors. This defence may apply, for example, when a mother sends a photo of her child in the bath to a family member.

Comments on the Bill

In his second reading the Attorney-General indicated the wide extent of the problems caused by so-called "revenge porn" as indicating the need for the legislation:

"Despite the impression created by the term “revenge porn”, image-based abuse extends beyond the 'relationship gone sour' scenario where a jilted ex-lover shares an intimate image without consent to seek revenge. According to a comprehensive Australian study on image-based abuse by Dr Nicola Henry at RMIT University and Monash University, image-based abuse is perpetrated for a variety of reasons, including control, intimidation, sexual gratification, monetary gain and social status building. It is also used to threaten, harass, objectify, humiliate, shame and instil fear. These motivations are often apparent from the degrading commentary that can accompany images when they are posted online."

A key concern is according to the AG in the area of family and domestic violence where 


". . . image-based abuse has also emerged as an increasingly common feature in family and domestic violence cases, used as a means of coercing and controlling the victim. It is also used to facilitate so-called “sextortion”, whereby perpetrators threaten to distribute intimate images to compel the victim to engage in unwanted sexual acts or to extract monetary payment."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Criminal Law Amendment (Intimate Images) Bill 2018 (76 of 2018) [WA] and supporting materials as reported in the Timebase LawOne Services

New revenge porn laws for WA (Nine News 28 June 2018)

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