Threats to distribute intimate image or prohibited visual recording- 229A Criminal Code (Qld)

 

If you make a threat to someone you will distribute an intimate image of them you are committing a criminal offence. Likewise, if you make a threat of distributing a prohibited visual recording, you will be committing a criminal offence. The law has attempted to protect individuals from these types of threats by prohibiting it.  The Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019 (Qld) inserted section 229A into the Criminal Code. The offence came into effect on 21 February 2019.

 

What Does The Prosecution Need To Prove For An Offence Of Threats To Distribute An Intimate Image or Prohibited Visual Recording?

 

There are 2 scenarios provided for by section 229A:

 

1. Where you make a threat to a person to distribute an intimate image or prohibited visual recording of them.

 

2. Where you make a threat to a person to to distribute an intimate image or prohibited visual recording of a second person.

 

For scenario 1 the prosecution must prove:

 

1. You made a threat to another person to distribute an intimate image or prohibited visual recording of the other person; and

 

2. You did not have the other person’s consent; and

 

3. The threat was made in a way that would cause the other person distress reasonably arising in all the circumstances; and

 

4. The threat is made in a way that would cause the other person fear, reasonably arising in all the circumstances, of the threat being carried out.

 

For scenario 2 the prosecution must prove:

 

1. You made a threat to another person (Person 1) to distribute an intimate image or prohibited visual recording of another person (Person 2).

 

2. You did not have Person 2’s consent.

 

3. The threat was made in a way that would cause either Person 1 or Person 2 distress reasonably arising in all the circumstances; and

 

4. The threat is made in a way that would cause Person 1 fear, reasonably arising in all the circumstances, of the threat being carried out.

 

 

Does It Matter If The Intimate Image Or Prohibited Visual Recording Does Not Exist?

 

No it does not matter. Even if the intimate image or prohibited visual recording does not exist you will still have committed an offence.

 

Does It Matter If The Fear Experienced By The Complainant Need To Have Been Intended?

 

No. It does not matter if you intended to cause or actually cause the fear.

 

Consent

 

The consent given by the complainant must have been given freely and voluntarily. This means the consent cannot be obtained from the complainant by putting them under duress. If you force someone to give their 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.

 

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.

 

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 Is A “Prohibited Visual Recording”?

 

Section 207A of the Criminal Code defines prohibited visual recording of a person as:

 

(a) a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or

(b) a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

 

 

What Is The Maximum Penalty For An Offence Of Threats To Distribute An Intimate Image Or Prohibited Visual Recording Under Section 229A Of The Criminal Code?

 

The maximum penalty is 3 years imprisonment.

 

Criminal Lawyers Brisbane Group- The Sexual Offence Experts

 

If police charge you with a sexual offence, the best thing you can do is arm yourself with a criminal defence lawyer.  But, not any criminal lawyer. You want a criminal lawyer whose primary practice is sexual offences. At the Criminal Lawyers Brisbane Group we focus on crimes involving sex, drugs and, no, not rock and roll, but fraud.

If you want the best result, you need the best Brisbane criminal lawyers. 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.