Threat to Distribute Intimate Image

Which court will the case be heard in?

This is an offence that is dealt with in the Magistrates’ Court.

What is the legal definition of Threat to Distribute Intimate Image?

The legal definition of Threat to Distribute Intimate Image is when somebody (A):

1. Makes a threat to another person (B) to distribute an intimate image of another person;
2. The distribution of the image is contrary to community standards of acceptable conduct;
3. (A) intends that the other person will believe, or (A) believes that the other person will probably believe, that (A) will carry out the threat.

A threat may be made by any conduct, and may be explicit or implicit.

Examples of Threat to Distribute Intimate Image

• Someone (A) threatens to post naked images of their ex-girlfriend to Facebook.

Legislation

The section that covers this offence is section 41DB of the Summary Offences Act 1966:

Threat to Distribute Intimate Image

1. A person (A) commits an offence if—
   1. A makes a threat to another person (B) to distribute an intimate image of B or of another person (C); and
   2. the distribution of the image would be contrary to community standards of acceptable conduct; and
   3. A intends that B will believe, or believes that B will probably believe, that A will carry out the threat.
2. A person who commits an offence against subsection (1) is liable to level 8 imprisonment (1 year maximum).
3. For the purposes of this section, a threat may be made by any conduct and may be explicit or implicit.¹

Elements of the offence

The court may find an accused guilty of this charge if the prosecution proves the following elements beyond reasonable doubt:

Element 1: The accused made a threat to another person (C) to distribute an intimate image of B or of another person (C)
An ‘intimate image’ is defined in s 40 of the Act as a moving or still image that depicts a person engaged in sexual activity; a person in a manner or context that is sexual; or the genital or anal region of a person or, in the case of a female, the breasts. ‘Genital or anal region’ means a person’s genital or anal region whether bare or covered by underwear. This definition is deliberately broad and is intended to cover any image which may be considered to be intimate.²

‘Distribute’ is defined in s 40 of the Act to include publish, exhibit, communicate, send, supply or transmit to any other person, whether a particular person or not; and make available for access by any other person, whether a particular person or not.

A threat may be made by any conduct and may be explicit or implicit.³

Element 2: The distribution of the image would be contrary to community standards of acceptable conduct; and
‘community standards of acceptable conduct’ is defined in s 40 of the Act as standards of conduct having regard to:

1. The nature and content of the image;
2. The circumstances in which the image was captured;
3. The circumstances in which the image was distributed;
4. The age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image; and
5. The degree to which the distribution of the image affects the privacy of a person depicted in the image.

Element 3: The accused intended that B will believe, or will probably believe, that the accused will carry out the threat.
The prosecution must further prove that the accused intended that person B will or will probably believe that the accused will carry out their threat to distribute the image.

Defences

• The accused person did not make a threat.
• The images were not contrary to community standards.

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 made the threat?

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

Threat to Distribute Intimate Image has a maximum penalty of 1 year imprisonment.

Sentencing

Pleading guilty to Threat to Distribute an Intimate Image can attract a prison sentence because Courts view this offending as a breach of someone’s trust. This offending normally leads to a great deal of embarrassment for the complainant if the images are distributed to their family or work colleagues (DPP v Jackson Lade (a pseudonym) [2017] VSCA 264). The Court has other sentencing options available to it, such as a Community Correction Order, fine or Good Behaviour Bond. To increase your prospects of avoiding a prison sentence you must choose a lawyer who will prioritise doing the following:

• Finding other examples of this offence to distinguish your offending.
• Demonstrating your sincere remorse to the complainant by preparing you to give evidence from the witness box or write a letter of apology.
• Directing you to complete a Men’s Behaviour Change Program or counselling. This will address the underlying cause for your offending.

_{[1] Australian legal Information Institute. “Summary Offences Act 1966 – Section 41DB: Threat to distribute intimate image.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/soa1966189/s41db.html (accessed June 22, 2020).
[2] Clause 24 Explanatory Memorandum, Crimes Amendment (Sexual Offences and Other Matters) Bill 2014
[3] s 41DB(3) of the Summary Offences Act 1966 (Vic)}