If you are unfamiliar with the term ‘sexting’ it is the distribution of intimate images of other people via sms. With the growing access to camera phones which can be used to photograph someone, and then easily shared, it has become necessary to protect those that have not provided their consent for an intimate photograph of them to be distributed to others. Victoria is one of the first states to make the sending of these images illegal with new laws passed in Parliament under the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014, which amends to the Summary Offences Act 1966. Two new summary offences have been created for threatening to distribute of an intimate image, and distributing an intimate image which has been deemed to be against community standards of acceptable conduct. The new laws are designed to send a clear message that the malicious use of intimate images to embarrass, and degenerate, a person is not acceptable and is a criminal offence. Sexting can cause considerable harm to people especially when an image goes viral.
What is an intimate image under the new laws?
Division 4A of Part 1 of the Summary Offences Act 1966 will see the addition of sections 41DA and 41DB, along with new definitions relating to community standards of acceptable behaviour, consent, and intimate image. When the court is determining if an image is contrary to community standards of acceptable conduct, it is to have regard to the nature and content of the image; the circumstances in which the image was taken; the circumstances in which the image was distributed; the age, intellectual capacity, vulnerability or other relevant circumstances of the person in the image; and the degree to which the distribution of the image affects the privacy of the person in the image. The new offences will not apply if consent was obtained which means by a ‘free agreement’, and is consistent with the current meaning relating to sexual offences. An intimate image means a moving, or still, image that depicts a person engage in sexual activity; a person in a manner, or a context, that is sexual; or the genital, or anal, region of a person, or in the case of a female, the breasts. It is important that the images are viewed in the context of acceptable community standard, and each case will be reviewed on the particular circumstances surrounding the image.
What are the Penalties for intimate image offences?
If a person intentionally distributes an intimate image of another person to someone other than the person in the image, and the distribution is contrary to community standards of acceptable conduct, they will be guilty of an offence under Section 41DA Distribution of intimate image. The offence will be punishable by a maximum term of imprisonment of 2 years. If a person threatens to distribute an intimate image, and that image would be contrary to community standards, and the person truly believes they will carry out the threat then they are guilty of an offence. The offence will be punishable by a maximum term of imprisonment of 1 year.
How do these new laws affect minors under the age of 18?
Amendments have also been made so that it is no longer illegal for someone under the age of 18 to create, store, or distribute a sext of someone who is less than two years younger than them, as long as they have their permission. Also the consent component of 41DA does not apply to someone under the age of 18 if the offender is over the age of 18. If the person whose image is depicted is under 18 years of age this will also be a factor in addressing whether the distribution is contrary to community standards due to their greater vulnerability and need for protection.