DISTRIBUTING INTIMATE IMAGES- SECTION 223 CRIMINAL CODE (QLD)

Distributing an intimate image of a person without their consent in Queensland is a criminal offence. Sharing images has become more common with technological advancement, particularly smartphones. Some people share what the law says are intimate images. For example, if your girlfriend sends you a text message containing a naked picture of herself to your mobile phone. Sometimes the media refers to sharing intimate images as “revenge porn”. This is because the images are shared for the sinister purpose of causing another person harm or shame. Intimate images may also be shared without the other person’s consent to blackmail them or to show friends how sexy a girlfriend or boyfriend’s appearance is.

 

Since February 2019, Queensland amended the Criminal Code to deal with “revenge porn” (i.e. the non-consensual distribution of intimate images).

 

According to the Office of the eSafety Commissioner 2017 National Survey: Summary Report:

 

• 1 in 10 adult Australians has experienced their nude/sexual image being shared without their consent.

 

• 1 in 5 women aged between 18 and 45 had experienced their nude/sexual image being shared without their consent.

 

• Women were twice as likely to have their nude/sexual images shared without their consent than men.

 

• Women are more likely to experience revenge porn by a former intimate partner than men.

What Must The Prosecution Prove For An Offence Of Distributing An Intimate Image?

 

The prosecution must prove:

 

1. You distributed an intimate image of another person.

 

2. The person did not give you consent to distribute the intimate image.

 

3. The distribution of the intimate image would cause the person distress reasonably arising in all the circumstances.

 

What Is An “Intimate Image” Of A Person?

 

Section 207A of the Criminal Code defines “intimate image” as:

(a) means a moving or still image that depicts:

(i) the person engaged in an intimate sexual activity that is not ordinarily done in public; or

(ii) the person’s genital or anal region, when it is bare or covered only by underwear; or

(iii) if the person is female or a transgender or intersex person who identifies as female—the person’s bare breasts; and

 

(b) includes an image that has been altered to appear to show any of the things mentioned in paragraph (a)(i) to (iii); and

(c) includes an image depicting a thing mentioned in paragraph (a)(i) to (iii), even if the thing has been digitally obscured, if the person is depicted in a sexual way.

 

What Does “Distribute” Mean?

 

Section 207A of the Criminal Code defines “distribute” to include:

 

(a) communicate, exhibit, send, supply or transmit to someone, whether to a particular person or not; and

(b) make available for access by someone, whether by a particular person or not; and

(c) enter into an agreement or arrangement to do something in paragraph (a) or (b); and

(d) attempt to distribute.

 

Consent

 

The intimate image must have been distributed without the other person’s consent.

Section 223(5) of the Criminal Code says consent means freely and voluntarily given by aperson with the cognitive capacity to give the consent.

 

Consent must be given freely and voluntarily. This means that consent cannot be obtained by putting the complainant under duress. If you force someone to consent, then this consent will not be given freely and voluntarily. The person giving their consent must have the cognitive capacity to. This means you cannot get consent from someone who does not understand the implications of giving consent.

 

The law says a person under 16 years of age cannot give their consent.

 

Are There Any Defences To A Charge Of Distributing Intimate Images Under Section 223 Of The Criminal Code?

 

Yes. Section 223(4) provides for one defence. It is a defence if you distributed the intimate image for a genuine artistic, educational, legal, medical, scientific, or public benefit purpose, and it was reasonable to do so.

 

What Is The Maximum Penalty For An Offence Of Distributing Intimate Images Under Section 223 Of The Criminal Code?

 

The maximum penalty is three years imprisonment.

 

Rectification Orders

 

If you are convicted of an offence of distributing intimate images under s223 of the Criminal Code, the Court can make a rectification order. A Rectification Order would require you to take reasonable action to remove, retract, recover, delete or destroy an intimate image or prohibited visual recording involved in the offence within a stated period.

 

If a Rectification Order is made and you do not comply with it, you can be charged with not complying with it.

 

Criminal Lawyers Brisbane Group, The Sexual Offence Experts

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You need the best Brisbane criminal lawyers if you want the best result. Contact the Criminal Lawyers Brisbane Group today for confidential expert advice. We represent clients throughout South-East Queensland. No matter where your criminal charge is, our sex crime lawyers can help you.