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Intentionally Visually Capture Another Person’s Genital or Anal Region

In Victoria, section 41B of the Summary Offences Act 1966 is the offence of Intentionally Visually Capture another Person’s Genital or Anal Region which is deliberately taking a photograph of a person’s genital area without their knowledge or consent.

Have you been accused of Intentionally Visually Capture Another Person’s Genital or Anal Region?

Police interview
These investigations normally begin with Police knocking on your door with a search warrant wanting to look at your computer and other devices. If this happens, call our office immediately to get advice. We can speak with the Police and make sure they are not searching for things they do not have authority to check.

We can guide you during your Police interview what your obligations are, or if you must hand over your electronic devices. You risk harming your defence if you do not know how to properly deal with the Police.

Pleading not guilty
Our lawyers are experienced in representing people charged with Intentionally Visually Capture Another Person’s Genital or Anal Region. You want a lawyer who is going to fight for your rights and challenge the Police case. There will be a lot of evidence that needs to be requested from the Police. Just because the Police say something happened does not make it so. Therefore, we conduct our own very careful investigations.

Pleading guilty
We can also help you in a plea of guilty to Intentionally Visually Capture Another Person’s Genital or Anal Region. There are things which a Magistrate needs to know which can lead to a better outcome. We are experienced with these sorts of matters and know what helps in Court. We can help you gather character references and reports which might persuade a Magistrate not to send you to prison.

  • Contact an expert in charges of Intentionally Visually Capture Another Person’s Genital or Anal Region on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
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

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.
Elements of the offence
The prosecution must prove:

  1. The accused visually captures another person’s genital or anal region;
  2. The accused does so intentionally; and
  3. 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.
Legislation
The legislation for this offence can be found on section 41B of the Summary Offences Act 1966:

Visually Capturing Genital or Anal Region
A person must not intentionally visually capture another person’s genital or anal region in 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.

Penalty: 2 years imprisonment.

Notes
  1. 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.
  2. Section 41D(1) sets out exceptions to this offence.2

[1] Summary Offences Act 1966 (VIC) s 41B
[2] Ibid.

 
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.

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?

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.
 
Sentencing in the higher courts of Victoria
Sentencing Statistics Pie Chart for Intentionally Visually Capture Another Person's Genital Region in the Higher Courts
Sentencing in the Magistrates’ Courts of Victoria
Sentencing Statistics Pie Chart for Intentionally Visually Capture Another Person's Genital Region in the Magistrates' CourtsPlease note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.3

Even though the maximum penalty for pleading guilty to Intentionally Visually Capture Another Person’s Genital or Anal Region is a term of a imprisonment, most people sentenced received a Community Correction Order. You can increase your chances of receiving a Community Correction or fine by:

  • Demonstrating genuine remorse,
  • Obtaining an expert report which explains the cause for your offending,
  • Undergoing treatment or a men’s behaviour change program,
  • Preparing properly considered plea submissions which explain your personal circumstances.
In cases like this, most Magistrates want to know that you have supports in place to reduce the likelihood of this type of offending happening again.


[3] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >