Distribution of Intimate Image

What is the legal definition of Distribution of Intimate Image?

The legal definition of Distribution of Intimate Image is when somebody (A):

1. Intentionally distributes an intimate image of another person (B) to a person other than (B); and
2. The distribution of the image is contrary to community standards of acceptable conduct.

The offence does not apply to person (A) if:

1. (B) is not a person under the age of 18; and
2. (B) has expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented to:
   
   1. The distribution of the intimate image; and
   2. The manner in which the intimate image was distributed.

Examples of Distribution of Intimate Image

• Someone (A) posts images of his naked girlfriend on a public Facebook page. The girlfriend had sent the image to (A) for his personal use and explicitly stated not to distribute them.

What is the legal definition of “intimate image”?

The legal definition of “intimate image” is defined in s 40 of the Summary Offences Act as:

1. A person engaged in sexual activity; or
2. A person in a manner or context that is sexual; or
3. The genital or anal region of a person or, in the case of a female, the breasts.

Legislation

The section that covers this offence is section 41DA of the Summary Offences Act 1966.

Distribution of Intimate Image

1. A person (A) commits an offence if—
   
   1. A intentionally distributes an intimate image of another person (B) to a person other than B; and
   2. the distribution of the image is contrary to community standards of acceptable conduct.
2. A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum).
3. Subsection (1) does not apply to A if—
   
   1. B is not a person under the age of 18 years; and
   2. B had expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented, to—
      
      1. the distribution of the intimate image; and
      2. the manner in which the intimate image was distributed.¹

Elements of the offence

A person may be convicted of Distribution of Intimate Image if the following elements are proven in court:

• The accused intentionally distributed an intimate image of another person (V) to a person other than V; and
• The distribution of the image is contrary to community standards of acceptable conduct; and
• The person (V) is under the age of 18 years; and
• The person (V) had not expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented, to the distribution of the intimate image and the manner in which the intimate image was distributed.

Defences

• The accused person did not send the images, someone else did.
• The complainant consented to the images being distributed.

There are other possible defences depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this

• What was the content of the images?
• Was it the accused who sent / posted the images?

Maximum penalty for section 41DA of the Summary Offences Act 1966

Distribution of Intimate Image has a maximum penalty of 2 years imprisonment.

Sentencing when pleading guilty

Pleading guilty to the Distribution of an Intimate Image is treated seriously by the Courts because it is seen as a breach of trust (DPP v Jackson Lade (a pseudonym) [2017] VSCA 264). In Victoria, you can receive a prison sentence if you plead guilty to Distribution of Intimate Image. However, you can avoid a prison sentence and receive a Community Correction Order depending on the following:

• The gravity of the offence. It is important in a plea like this to find comparable cases where the objective seriousness is higher to distinguish your wrong-doing.
• Demonstrating sincere remorse to the complainant. You must show the Court that you are genuinely remorseful for your actions. This can be done by giving evidence from the witness box or by writing a heartfelt letter which can be handed to the Court.
• Undergoing a Men’s Behaviour Change Program or counselling. A Court wants to see that you are taking steps to address your wrong-doing to stop it from happening again. You can do this by completing a 16-week Men’s Behaviour Change course or counselling.