Section 41B of the Summary Offences Act 1966 (Vic) sets out the statutory offence of visually capturing genital or anal region. In Victoria, the maximum penalty is 2 years imprisonment.
To prove this offence, the prosecution must establish the following beyond reasonable doubt:
- The accused visually captured another person’s genital or anal region;
- The accused did so intentionally; and
- The accused did so in circumstances in which a reasonable person in the position of the other person would expect that his or her genial or anal region could not be visually captured.
For the purposes of this provision, a ‘visually capture’ means to capture moving or still images by a camera or other means in such a way that a recording is made of those images or those images are otherwise capable of being distributed (distribution is an offence under section 41C of the Act). Again, ‘genital and anal region’ includes circumstances where the region is bare or covered by underwear.
It is also important to note that if the person depicted appears to be a minor, there is the possibility of being charged with production of child pornography under the Crimes Act.
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