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Intentionally Visually Capture Another Person’s Genital or Anal Region

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 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%).3

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.4


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