New South Wales has joined Victoria and South Australia in making it a criminal offence to share sexual images of a person without their consent. The legislation has passed both houses of Parliament but has not yet commenced. The recording and the distributing of the images must have been intentional and be done without the consent of the victim, either as to the recording or the distributing.
There are also new offences of “threatening” to record or distribute an image that cause a person to fear that the threat would be carried out. These offences are particularly directed to the context of domestic violence where threats to distribute images are often used to control a person’s behaviour.
Any person being recorded in an intimate context can, of course, consent to the recording or the distribution but it’s important to be aware that people under the age of 16 years and people with a disability that makes them unable to do so, simply cannot consent to the recording or the distributing of intimate images. They do not have the legal capacity to do so under our law.
The offences do not apply to ‘sexting’, that is, sending a nude picture of yourself to someone else. However, the law will certainly apply if that image is later distributed without the person’s consent. Children under the age of 16 years can be prosecuted under this law in certain circumstances.
