Chapter 3
Legislative responses
3.1
The importance of enacting laws to criminalise non-consensual sharing of
intimate images was highlighted by most submitters to the inquiry. In
particular, organisations working directly with victims of non-consensual sharing
of intimate images asserted that legislation in this area would send a strong
message that this type of conduct is unacceptable and serve to deter potential
perpetrators from offending.[1]
Overall, most submitters supported the introduction of legislation at the
Commonwealth level to address non-consensual sharing of intimate images, for
example, the Commonwealth Director of Public Prosecutions (CDPP) submitted that
legislation in this area would 'fill a gap within the existing law'.[2] The Law
Council of Australia (LCA) advocated that legislation addressing the problems
of non-consensual sharing of intimate images 'would be a positive step in
combating violence against women.[3]
3.2
The Top End Women's Legal Service (TEWLS) discussed the potential
contribution of legislation to reducing the impact of non-consensual sharing of
intimate images:
criminal offences
effectively serve as a symbolic and educative function for society...by providing
a tailored offence for criminal porn, this behaviour would be appropriately
identified to the public and would clearly highlight and reinforce the
'wrongfulness' of revenge porn.[4]
3.3
The broader benefits of criminalising non-consensual sharing of intimate
images were also articulated by the Queensland Law Society (QLS):
If people become
aware that they may be committing an offence by sharing things they might
become a little bit more discretionary about what they share and in what
circumstances. With a public awareness campaign maybe less of it will happen,
because they will be thinking, "Hang on, I'd better be damn sure that I've
got consent before I pass this on".[5]
3.4
Submitters and witnesses also told the committee that enacting
legislation at the Commonwealth level is unlikely to be the only measure needed
to address the problem.[6]
3.5
Most submissions advocated specific legislation at a Commonwealth level,
rather than relying on legislation enacted by the states and territories. A
range of reasons were raised. For example, Domestic Violence Victoria (DVV)
discussed its concerns about the adequacy of state based legislation to address
non-consensual sharing of intimate images, noting that it is common in
relationship breakdown, particularly in cases of domestic violence, for one
partner to move interstate:
A Commonwealth law
against 'revenge porn' would allow for a consistent response across states and
territories in recognition that this issue—often in digital form—crosses
physical borders. This will be essential to ensure congruency with stalking,
harassment and other laws, as well as the national domestic violence order
scheme and parenting orders.[7]
3.6
There is also often an international element in non-consensual
sharing of intimate images cases, for instance, where the images are posted on
a website hosted outside Australia. The committee was advised that addressing
this international element of non-consensual sharing of intimate images would
be challenging, even with Commonwealth legislation in place, and 'complications
around the transnational nature of technology-facilitated crimes, in that the
owners of the site may not reside in Australia and thus not subject to its
laws'[8]
would persist.
3.7
Recommendations from submitters and witnesses in relation to amending
existing or implementing new Commonwealth legislation are discussed in the
following sections.
Commonwealth legislation
Is existing legislation being used and working?
3.8
According to the Australian Federal Police (AFP), the Commonwealth
legislation (section 474.17 of the criminal code) has not been used in relation
to non-consensual sharing of intimate images. However, it has been used by the
ACT Director of Public Prosecutions in a related case that involved the
non-consensual filming of sexual activity and 'the use of the
telecommunications service to broadcast that to the people watching it in
another location was the misuse of the carriage service'.[9]
3.9
The submission from the CDPP identified a number of issues with the
current Commonwealth legislation in terms of how effectively it could be
applied in the context of non-consensual sharing of intimate images offences.
3.10
As discussed in chapter 1, section 474.17 of the Criminal Code provides
for the criminalisation of conduct relating to the misuse of a
telecommunications service. However, in the context of a potential non-consensual
sharing of intimate images offence, section 474.17 does not address:
consent of the
victim, nor does it define what might constitute an offensive communication, in
the context of disseminating intimate, personal or sexual material
electronically.[10]
3.11
According to the CDPP, other aspects of a non-consensual sharing of
intimate images offence that are 'not contemplated' in the current legislation,
include whether the victim 'held and maintained an expectation of privacy in
relation to the image' and the fact that this part of the Commonwealth offence
relates to the misuse of a telecommunications service, and would not extend to
non-online conduct, such as distributing hard copy images.[11]
3.12
The CDPP stated that a fundamental issue in evaluating the adequacy of
the current legislation is that section 474.17 is not being used in relation to
non-consensual sharing of intimate images, meaning that there has not been an
opportunity to test the law. However, it was noted that there are 'evidentiary
difficulties in isolating the use of the telecommunication service. Is it one
push of a button, and how is that recorded electronically? Evidence-gathering
issues associated with that are considerable'.[12]
3.13
The CDPP opined that amendments to the criminal code to create a new
Commonwealth offence targeting non-consensual sharing of intimate images would
be beneficial if they clarify issues 'in relation to the sort of material it
applies to and the circumstances in which it applies'.[13]
Constitutional issues
3.14
The Attorney General's Department (AGD) discussed aspects of Australian
Constitutional law of relevance to future non-consensual sharing of intimate
images legislation. Under the Australian Constitution, powers are distributed
between the Commonwealth and the states and territories[14].
3.15
Where the Commonwealth has 'legislative power regarding a subject
matter, it can create criminal offences in respect of the subject matter'.[15] Under section
51(v) of the Constitution, the Commonwealth has authority to make laws with
respect to postal, telegraphic, telephonic, and other like services. This has
been interpreted as giving the power to make laws with respect to 'carriage
services', including telecommunications networks and the internet.
3.16
Noting that state legislation has already been enacted in response to non-consensual
sharing of intimate images, the CDPP considered potential Constitutional issues
and suggested that 'it is preferable that any Commonwealth law not operate to
exclude or limit the concurrent operation of those State laws':[16]
To maximise coverage
of the State laws that have been enacted, it is preferable that any
Commonwealth law not operate to exclude or limit the concurrent operation of
those State laws. To this end, it is recommended that a provision stating Parliament’s
intent in this regard be included (for example, a provision similar to s 300.4
and 370.3 of the Code).[17]
3.17
The reasons why this could be problematic were outlined by the Director
of Public Prosecutions (DPP) Tasmania:
If the Commonwealth
does decide to legislation in this area, I would suggest that such legislation
provides that it is to act in conjunction with State legislation and not to
replace any such legislation for the same types of behaviour. The reason for
this is that often such conduct...can be involved with other State-based offences
against the victim. Therefore, if any Commonwealth legislation were to replace
the State-based legislation it would make it difficult to prosecute offences
under both Commonwealth and State legislation. Further, often for these
victim-type offences the offence would be investigated by State-based police.[18]
3.18
Women's Legal Services NSW and the LCA highlighted a gap in the
current legislation around non-consensual sharing of intimate images in hard
copy, for example, 'if an image was left at someone's door or passed from
person to person, but not through an electronic device.[19]
3.19
The LCA discussed the need for criminalisation of non-consensual sharing
of intimate images to include physical and non-online forms of action, but
raised a concern that 'Commonwealth legislation may be restricted to online
forms for Constitutional reasons, and this issue would therefore need to be addressed
in State legislation':[20]
We also see that state and territory legislation is also
needed to address the issue of non-consensual sharing of images beyond carriage
service providers and postal services, such as person-to-person sharing of
images or leaving an image at someone's doorstep.[21]
Key elements of potential future legislation
Definitions
3.20
As discussed in chapter 2, a number of submitters and witnesses outlined
concerns with the term 'revenge porn', recommending terms such as 'non-consensual
sharing of intimate images' to describe 'revenge porn'.[22] Definitional
issues associated with a number of other terms were also brought to the
committee's attention.
3.21
For example, it was highlighted that the Victorian non-consensual
sharing of intimate images legislation uses the term 'intimate image' and
defines it as:
a moving or still
image that depicts (a) a person engaged in sexual activity; (b) a person in a
manner or content that is sexual; or (c) the genital or anal region of a
person, or, in the case of a female, the breasts.[23]
3.22
The Victorian legislation also states that community standards of acceptable
conduct must be taken into account. This includes the nature and content of the
image, the circumstances in which it was captured and distributed, and the
circumstances of the person who is the subject of the image, including the
impact on their privacy.[24]
3.23
Noting that non-consensual sharing of intimate images legislation
enacted by jurisdictions at the state level in Australia, as well as overseas,
has defined the material differently, the CDPP submission recommended that it
would be helpful:
if the types of
subject matter depicted was clearly defined and less open to interpretation...
material which is intimate, but not sexual, may be capable of causing a victim
distress if disseminated without their consent. Further, what might be
considered to be sexual, personal or intimate will differ within Australian
society.[25]
3.24
The AGD described this point in more detail, noting that some parts of
the community would be likely to take a broader view about what constitutes non-consensual
sharing of intimate images:
beyond images that
are strictly of a "sexual" nature; intimate, non-sexual images (for
example, of a Muslim woman without her hijab) distributed without consent can
be equally as damaging and traumatic for a victim and can be used in much the
same way as a sexual image by a perpetrator of abuse.[26]
3.25
It was brought to the attention of the committee that under the current
Victorian non-consensual sharing of intimate images legislation, 'distribute'
is defined as 'publish, exhibit, communicate, send, supply, or transmit to any
other person, whether to a particular person or not'.[27] However, Drs Henry, Flynn
and Powell indicated in their submission that under this definition it was not
clear whether 'communicate' could mean 'showing' someone an image, for example,
a printed hardcopy or an image on a screen, and that any 'new offence should
clearly state that distribution can mean sharing and showing, and that it is
irrelevant whether it is distributed to one person or millions of people'.[28]
3.26
Assistant Professor Terry Goldsworthy et al noted that:
Great care must be taken when drafting legislation to combat an issue such
as "revenge pornography". For example, what does it mean to distribute?
Does showing a friend or work colleague an image stored on an electronic
device, such as a mobile phone constitute distribution? What about
instances where the image is, instead of stored on a mobile phone, merely
retrievable via an online "cloud"-like application? What if the image is not
deliberately/intentionally distributed? It is submitted that any legislation
that is drafted should include both terrestrial and cyber forms of distribution
so as to include, for example, the sharing or sending of a hard-copy
photograph to another.[29]
It is plausible that a person ('A') may lose, sell or otherwise transfer their
electronic storage device (e.g., mobile phone, camera, laptop) to another
person ('B') and B may distribute an intimate image of C. Should A be
criminally liable for the distribution of C's image? Relatedly, A's electronic
storage device system may be exploited (i.e., hacked) by another person and
images stored on that device may be distributed. In all of these instances:
loss; sale; transfer; and exploitation; person A may have, although
unintentionally, recklessly distributed another person's image. A may not
have, for example, purchased adequate anti-viral software on his or her
computer.[30]
3.27
The Office of the Director of Public Prosecutions in NSW (ODPP NSW) stated
that the term 'image' should include still (photographs) and moving
(film/video) images.'[31]
Further, a 'reasonable expectation of privacy would include such things as, an
image in which':
-
A person is depicted naked or
partially naked, irrespective of whether their genitals are exposed and
irrespective of the type of pose the person has adopted;
-
A person is depicted engaged in a
sexual act/activity, irrespective of whether their face is visible;
-
A person is depicted in a way
which, by the context or content, would suggest that the image is of an
intimate or private nature such as images depicting a person dressed in
lingerie, or in a sexual pose.[32]
3.28
It was suggested that photo-shopped images should also fall within the
scope of future legislation, and that the Victorian legislation 'fails to
consider instances where real images may be doctored or fabricated so as to
appear "intimate", despite their lack of authenticity'.
Consent
3.29
Consent was described by witnesses as a key aspect of legislation
addressing non-consensual sharing of intimate images, and the importance of
careful drafting was highlighted, as any ambiguity in this area may favour the
perpetrator:
If consent is left
vague or open to argument, it certainly will be argued. It is our view, as we
have stated there, that certain categories a person, even if they give consent,
some should be deemed unable to consent, such as those under 18.[33]
3.30
The LCA made it clear that any consent given for intimate images to be
created in the course of a relationship should cease at the conclusion of the
relationship: 'Consent to having intimate images taken or disseminated within a
relationship should be taken to have terminated upon the conclusion of that
relationship'.[34]
3.31
The ODPP NSW held a similar view:
Consent would need to be explicit/express and would need to
be consent to that particular image at that particular time and in the manner
used. The onus would be on the offender to prove consent.[35]
3.32
The submissions from Women's Legal Services NSW discussed whether a
'harm element' might be necessary in addition to consent. However, at the
hearing Women's Legal Services NSW's view shifted and the service agreed that a
lack of consent should suffice:
In our submission to
the committee we have been open to supporting in principle a harm element to an
offence. But, on reflection, we now hold the view that absence of consent
should be sufficient. We see consent as a core issue. It should be explicitly
stated in legislation that consent to make the image of itself does not include
consent to distribute an image.[36]
3.33
It was also emphasised that the legislation must make clear that consent
must be provided for the creation and distribution of images:
Separate consent is required for distribution [and there
should be]...explicit and express consent for the sharing of that particular
image at that particular time, and the onus should be on the offender to prove
such consent was given.[37]
And:
Those two things
should not be muddied; they are very different. Someone may consent to a
photograph being taken and being kept by the taker as a private memento, but
they may not consent at all for that to be disseminated in any way, shape or
form beyond that one-to-one situation.[38]
Intent
3.34
Drs Henry, Flynn and Powell submitted that legislation should clarify
the intent of a perpetrator and exclude third parties who collect or distribute
images without knowing how it was created: 'Although that behaviour is
abhorrent, an offence should only apply if the person knows, or has reason to
know, that the other person did not consent to the distribution of the image'.[39]
3.35
However, this was not supported by other submitters. Victorian Women
Lawyers (VWL) stated that 'the behaviour of distributing sexual material
without consent should be a key focus. In particular, that then takes away the
onus on the victim to prove that they have established harm'.[40]
This was supported by the Sexual Assault Support Service (SASS):
We believe that the
proposed provisions should not rely on an intent to cause harm. We believe that
there are a lot of problems with this because, as I talked about in my opening
statement, there is a range of motivations for the behaviour. We are very
concerned that if there is a provision that talks about an intent to cause harm
it may create a bit of a legal loophole whereby perpetrators can basically say
that they did not intend to cause any harm or distress to the victim, that they
just thought it was a bit of a laugh and that they were trying to entertain
their mates, or something like that.[41]
3.36
The ODPP NSW submission was emphatic on this issue in its
submission to the inquiry: 'No intent should be required...there can be no
innocent intent. The only inference available is that the person intends to do
the harm, there can be no other reason for distributing the image'.[42]
Recklessness
3.37
The CDPP argued that it would be preferable for a recklessness element
to be included in the provisions of any future non-consensual sharing of
intimate images legislation, whether or not legislation required intent, or a
lack of consent. For example, if an offence required the lack of consent of a
victim, it should also include provisions covering instances where the accused
was reckless as to whether consent was given.[43]
3.38
The CDPP discussed this position in more detail at the hearing:
In relation to the
proof...it is easier to prove recklessness... I
think some of the earlier discussion with other speakers has been about the
difficulty of proving consent and when that stopped. That is really addressing
that issue, I think, that it will be uncertain sometimes when somebody has not
consented to the distribution of an image. I think somebody just ignoring that
and not trying to establish that is evidence of recklessness, and that would be
a preferable fault element to have applicable.[44]
Threats
3.39
As discussed in chapter 2, threats of non-consensual sharing of intimate
images can be powerful and there is 'the potential for the person receiving the
threat to be blackmailed'.[45]
This potential has been described as becoming 'a part of the domestic violence
pattern'[46]
and a 'tool of coercion and control' that can create a 'reluctance to report to
police'.[47]
3.40
Witnesses at the hearing stated that threats to disseminate intimate
images should also be proscribed in legislation: 'It is important that there be
remedies for both the actual sharing of intimate images without consent as well
as the threat to do so'.[48]
Further, 'that there should be no requirement of proof that an image actually
exists when a threat to share is made, as the mere threat is sufficient to cause
fear, anxiety, a sense of powerlessness'.[49]
3.41
The CDPP submission noted in the context of current and future
legislation that it envisaged situations 'where an individual...threatens to
disseminate an image or recording' would form part of a typical non-consensual
sharing of intimate images situation.[50]
Anonymity for
victims
3.42
Feelings of shame, humiliation, personal violation, and powerlessness
can reduce the likelihood that victims of non-consensual sharing of intimate
images will come forward and make an official complaint to police. A number of
submitters recommended that care should be taken to protect the privacy and
anonymity of victims who are involved in the criminal justice system.[51]
3.43
This issue has been discussed in the United Kingdom (UK), where non-consensual
sharing of intimate images legislation has already been enacted. The LCA noted
that following the introduction of non-consensual sharing of intimate images
legislation, 'proposals are now being considered in the UK to provide automatic
anonymity to a complainant of "revenge pornography", rather than
requiring specific individual suppression orders on a case by case basis'.[52]
3.44
Police in Australia are aware that victims can be reluctant to come
forward due to embarrassment and the stress that may be caused by the court
process.[53]
The CDPP identified that section 15YR of the Crimes Act 1914 (Cth) makes
it an offence to publish any material which actually identifies a victim in
certain proceedings, such as those involving vulnerable adult witnesses. It was
suggested that it may be that 'the Crimes Act needs to be expanded to
incorporate the victims of this type of crime under the umbrella of vulnerable
adult witnesses'.[54]
Young people
3.45
The issue of how potential future legislation to address this issue
would impact on young people was raised by the OCeSC:
Careful consideration
should be given to the impact of any new criminal sanctions on young people
under the age of 18, as well as consideration of diversions or alternatives
which can impose immediate consequences for offending behaviour while avoiding
the social cost associated with the criminal justice system.[55]
3.46
It was also acknowledged by other submitters that young people should be
considered by legislators when developing legislation in this area. The ACT
Attorney-General emphasised in his submission to the inquiry that there are
'complex policy issues' associated with enacting legislation in this area,
including 'how consensual "sexting" between children and young people
should be considered' and that there was concern regarding the 'inappropriate
application of criminal laws to children and young people'.[56] Electronic
Frontiers Australia (EFA) submitted that 'any Commonwealth legislation should
ensure that the actions of minors are addressed appropriately, and specifically
that minors are not dealt with under the terms of child pornography or
statutory rape offences'.[57]
3.47
However, the committee was told that cases where both parties are under
the age of 18 years should be distinguished from cases where the perpetrator is
over the age of 18 years and the victim is not. The CDPP recommended that
legislation include an aggravated offence in cases where the victim is under a
specific age, such as 16 years.[58]
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