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 purports to amend the Criminal Code of WA in three ways.
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.
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:
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:
A key concern is according to the AG in the area of family and domestic violence where
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Criminal Law Amendment (Intimate Images) Bill 2018 (76 of 2018) [WA] and supporting materials as reported in the Timebase LawOne Services
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