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Distribution of Intimate Image

– Section 41DA of the Summary Offences Act 1966
Distribution of intimate image of a person is charged where the police think someone has distributed an intimate image of another person who is less than 18 years old without their consent, and the distribution of the image is contrary to community standards of acceptable conduct.

Examples of distribution of intimate image

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

What are some of the possible defences to Distribution of Intimate Image?

  • 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 and 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 this charge

Distribution of intimate image has a maximum penalty of 2 years imprisonment.

What is the legal definition of Distribution of Intimate Image?

LegalThe 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.
“Can the Prosecution prove that you distributed the image?”

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.
 
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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.