Intimate Images Amendments to the Criminal Code of Western Australia

We have outlined these changes below, however, nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Police questioning you regarding social media posts? Accusations of Revenge Porn? Call us at our 24/7 hotline +61 8 6323 8697. Kean Legal Barristers & Solicitors is ready to help.

Intimate Images otherwise known as Revenge Porn

The advancement of technology not only paved the way for advantages that society could benefit from but allowed for a greater threat of image-based abuse. In this day and age, such abuse may come in the form of non-consensual distribution of intimate images, better known as ‘revenge porn’ or ‘sextortion’. Due to it being an increasingly common feature in family and domestic violence cases, the Western Australian Parliament passed the Criminal Law Amendment (Intimate Images) Act 2019 on 26 February 2019 which amended the Western Australia Criminal Code (“the Code”).

The amendment prohibits the distribution of intimate images. A person commits an offence if the person distributes an intimate image of another person (the depicted person) without their consent. We break down the three main elements of the offence pursuant to section 221BD(2) of the Code being ‘distribution’, ‘intimate image’, and ‘consent’.

Distribution – section 221BC

‘Distribution’ includes:

  • communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a person other than themselves or the depicted person; or
  • making the image available for access (i.e. posting on social media, or other websites) also constitutes ‘distribution’; or

Entering into an agreement or arrangement distribute without the consent of the person depicted to is also prohibited.

Intimate Image – section 221BA

‘Intimate image’ includes a still or moving image, in any form, that shows:

  • the person’s genital or anal area (whether bare or covered); or
  • breasts of any female person or persons identifying as female (whether bare or covered); or
  • the person engaged in a private act (i.e. state of undress, using the toilet, showering, bathing, or engaged in a sexual act)

Consent – section 221BB

Some common scenarios with regard to non-consent include:

  • Consent to the distribution of the depicted person’s intimate image once does not constitute consent to distribute that image or any other image on another occasion.

If A consents to B distributing his/her intimate image once, B cannot use that prior consent to distribute A’s image or any other image on another occasion.

  • Consent to the distribution of the image to a particular person does not constitute consent to distribute that image or any other image to that person or any other person.

If A consents to B distributing his/her image to C once, B cannot use that prior consent to distribute A’s image to any other person, or distribute any other image to C.

  • Distribution of the image by the depicted person does not constitute consent to any other distribution of the image or any other image.

If A distributes his/her image to B once, B cannot use A’s act of distribution as consent to distribute A’s image or any other image.

  • A person under 16 years of age is incapable of consenting to the distribution of an intimate image

Defence – 221BD(3)

Possible defences to this offence include the distribution of the image:

  • for a genuine scientific, educational, or medical purpose; or
  • being reasonably necessary for the purpose of legal proceedings; or
  • for media activity purposes which are reasonably believed to be in the public interest, without intending the distribution to cause harm to the depicted person; or
  • being reasonably acceptable, having regard to prescribed circumstances pursuant to the Criminal Code.

The penalty for this offence is imprisonment for up to 3 years, or a summary conviction penalty of imprisonment for up to 18 months and a fine of up to $18,000.

Police questioning you regarding social media posts? Accusations of Revenge Porn? Call us at our 24/7 hotline +61 8 6323 8697. Kean Legal Barristers & Solicitors is ready to help.

Feel free to contact our office if you need any legal advice call our office on: +61 8 6323 8697

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