– section 41B of the Summary Offences Act 1966
A person must not intentionally photograph or video another person’s genital or anal region without the consent of that person. This is a summary offence found under under section 41B of the Summary Offences Act 1966.
‘Visually capture’ is defined as recording moving or still images of the genital or anal region (regardless of under garments) on a camera or other device that are capable of being distributed.
Examples of Intentionally Visually Capture Another Person’s Genital or Anal Region
- A person is found to be using their phone on public transport secretly capturing ‘up-skirt’ images.
- A university student is discovered taking photos of fellow students' genital area and sharing the images on phone applications such as Snapchat to friends.
- A person hides a video camera in a towel or bag to capture images of genital regions on a beach during the summer period.
Questions in cases like this
- Was there consent, either implied or explicit, in the circumstances?
- Did the image originally originate from a broadcasting or data casting service?
What are some of the possible defences to Intentionally Visually Capture Another Person’s Genital or Anal Region?
In certain circumstances surrounding this charge, consent can be a crucial component to a defence. Other areas to explore may include intent, incorrect factual matrix, concept of beyond reasonable doubt, and reasonable mistake of belief.
Your decision on whether to contest or plead guilty to this charge is a crucial consideration that you need to discuss with a criminal lawyer. Know your rights as a defendant and be informed of the legal implications of either plea. Without a lawyer to inform you of the legal issues, you may end up having to face very serious consequences.
Maximum penalty and court that deals with this charge
This offence carries a penalty of two years imprisonment as the highest possible sentence. Repeat offending or relevant priors may significantly affect the outcome of your case in Court. As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.
What is the legal definition of Intentionally Visually Capture Another Person’s Genital or Anal Region?
A person must not intentionally visually capture another person’s genital or anal region in the circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.
The reasonable expectation test is an objective one – what would a reasonable person in the position of the person whose genital or anal region is being visually captured have expected?1
The legislation for this offence can be found on section 41B of the Summary Offences Act 1966.
Elements of the offence
The prosecution must prove:
- The accused visually captures another person’s genital or anal region;
- The accused does so intentionally; and
- The accused does so in circumstances in which a reasonable person in the position of the other person would expect that his or her genital or anal region could not be visually captured.
Sentencing in the Magistrates’ Courts
There were a total of 35 cases (142 charges) of Intentionally Visually Capture Another Person’s Genital or Anal Region that were heard in the Magistrates' Courts of Victoria from 1 July 2013 to 30 June 2016. Almost half of these cases led to Community Correction Orders (42.9%) while the remainder resulted in a variety of sentencing options:
- Fine - 20.0%
- Imprisonment - 14.3%
- Adjourned Undertaking/Discharge/Dismissal - 11.4%
- Wholly Suspended Sentence - 8.6%
- Partially Suspended Sentence - 2.9%
Of those who received financial penalties, the majority were in the "$4,000 < $5,000" category (83.6% for aggregate) and the highest amount imposed was also within this range.
The longest prison term imposed was between 24 and 36 months (20.0% of those who were sentenced to prison). The period most frequently imposed was however somewhere between 18 and 24 months (40.0%).2
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.3
Other important resources
- SAC Statistics - Summary Offences Act 1966 (Vic) : s 41B - intentionally visually capture another person's genital region
- Taking Photographs ‘in public’: What’s Lawful and What’s Not?
- SmartSafe: Legal Guide to Relevant Criminal Offences in Victoria
- The Role of Emerging Communication Technologies in Experiences of Sexual Violence
- Smart Phones Make It Easier For Peekers To Become Upskirters, Experts Say
- School Children Charged With Sexting Offences
 Summary Offences Act 1966 (VIC) s 41B
 SAC Statistics - Summary Offences Act 1966 (Vic) : s 41B - intentionally visually capture another person's genital region < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_41B.html >
 Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >