Distribution of an intimate image

The increase of the use and reach of technology generally has resulted in the expansion of its use in gender-based violence.  Such technology is being used to facilitate or commit sexual violence or harassment against (predominantly) women.

In response to the increasing prevalence of ‘revenge porn’, the Victorian Parliament passed the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 on 15 October 2014, which amended the Summary Offences Act 1966 (Vic), and the Crimes Act 1958 (Vic).

The legislation creates the new offences of distribution of an intimate image (section 41DA) and threat to distribute an intimate image (section 41DB) under the Summary Offences Act 1966 (Vic).

Additionally, it creates four exceptions to the offences of publication or transmission of child pornography to exclude young people who participate in consensual ‘sexting’ from such child pornography offences.

In relation to the offence of distribution of an intimate image, contrary to section 41DA of the Summary Offences Act 1966 (Vic), the prosecution must establish the following beyond reasonable doubt:

  1. That the accused intentionally distributed an image of the complainant to a person other than the complainant; and
  2. The distribution of the image is contrary to community standards of acceptable conduct.

In relation to the offence of threat to distribute an intimate image, contrary to section 41DB of the Summary Offences Act 1966 (Vic), the prosecution must establish the following beyond reasonable doubt:

  1. That the accused made a threat to the complainant to distribute an intimate image of the complainant or another person;
  2. The distribution of the image would be contrary to community standards of acceptable conduct; and
  3. The accused intended that the complainant believe, or believed that the complainant would probably believe, that the accused would carry out the threat.

‘Contrary to community standards of acceptable conduct’ in relation to these offences is defined by reference to a variety of factors, such as the nature and content of the image, the circumstances in which the image was captured and distributed and the vulnerability of the subject in the image.

The offences do not apply to intimate images of adults who have ‘expressly or impliedly consented, or could reasonably be considered to have expressly or implied consented’ to the ‘distribution of the intimate image’ and the ‘manner in which the intimate image was distributed’.

The maximum penalty for the offence of distribution of an intimate image is 2 years imprisonment and the maximum penalty for the offence of threat to distribute an intimate image is 1 year imprisonment