Legislative Developments Relating to Revenge Pornography and S*xting

Wednesday 20 January 2016 @ 11.33 a.m. | Crime | IP & Media | Torts, Damages & Civil Liability

In 2014, the Victorian Government passed the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (21 October 2014) which amended the Victorian Crimes Act in relation to various sexual offences and particularly with respect to the new trend of sharing sexually explicit images through the internet, mobile phones and other social media outlets, especially among younger adults and teens.

Now, in the last month of 2015, the South Australian Legislature has released similar legislation in draft form; namely, the Summary Offences (Filming and Sexting Offences) Amendment Bill 2015 (the Draft Bill), targeting in particular the issues of sexting and revenge porn.

Commenting on the Draft Bill, the South Australian Attorney General John Rau has said in a Media Release that:

"The draft Summary Offences (Filming and Sexting Offences) Amendment Bill 2015 will see a new offence created targeting the distribution of explicit images of another person without their consent."

and that:

"The draft legislation also seeks to address concerns about the potential for minors who practice 'sexting' being listed on the Child Sex Offender Register."

The South Australian Draft Bill

The Draft Bill proposes to amend the Summary Offences Act 1953 (SA) (the Act) by expanding Part 5A - Filming offences, to cover not just "Filming" but "Filming and sexting". The Draft Bill alters section 26A (Interpretation) of Part 5A to include a new definition of "cognitive impairment", and amends the definition of "film" by removing the words "moving or still" so as to expand the type of images covered, no doubt to include mobile phone images and video.The current definition of "invasive act" is also proposed to be repealed and a new more specific definition is inserted in sections 26A(2) and (3). Further, the definitions of "Private act" and "Private region" are proposed to be amended to widen their application.

Various other textual changes are proposed to existing sections of the Act and a major new section 26DA dealing with the threat to distribute an invasive image or image obtained from indecent filming is proposed to be inserted.

Under the proposed legislation, prosecutors and the courts are to be given the added “flexibility” to consider the context of a young person’s behaviour when deciding whether they should be listed on the Register of Sexual Offenders.

Proposed Penalties

Under the Draft Bill, a person who "threatens" to distribute an invasive image or intends to “arouse a fear” that the threat would be carried out would be guilty of an offence. Such an offence would carry a maximum penalty of $10,000 or two years jail where the image was that of a minor. Where the image was that of an adult the penalty would be $5000 or 12 months jail.

Where a person actually distributes the image of a minor the penalty increases to a maximum fine of $20,000 or four years jail, that is, recognising that the offence is worthy of a harsher penalty.

SA Attorney General's Comments on the Draft Bill

Speaking to the Adelaide Advertiser, the Attorney General is quoted as pointing out that:

". . . while no minor had been listed on the Child Sex Offenders Register for a sexting related offence, there was potential for it to occur and that needed to be addressed . . . Whilst there will still be cases where a young person may be properly charged with an offence relating to child exploitation material, these new laws ensure there is flexibility for prosecutors and courts to consider the context of the behaviour. . .”

The Attorney is seeking to progress the Draft Bill through the SA Parliament in 2016 and so far the Draft Bill has been released for comment, with comment being sought until Friday 5 February 2016.

Federal Developments in this Area

At the Federal level it should also be noted that in September 2015, two Federal Labor MPs, Terri Butler and Tim Watts, released an Exposure Draft Bill (the Criminal Code Amendment (Private Sexual Material) Bill 2015) to address what they describe as, the increasing occurrence of “revenge porn”. The proposed Exposure Draft Bill would prohibit the transmission or distribution of “private sexual material”, online or via SMS, without the consent of the person depicted in the material, as well as any threatened or intended offences of this nature,  and would provide penalties of up to five years imprisonment.

In an interesting article on the Federal Exposure Draft Bill  The Conversation points out that "revenge porn" and "sexting" are not new to the law and that case law precedent and the legal means for dealing with such matters already exists. The problem is more with the way technology has changed how the offences can be committed and the speed and effectiveness with which the existing laws can be implemented:

"Revenge porn poses new and pressing threats. Specific criminal laws would provide the requisite deterrence effect and accessible justice for victims."

The Conversation takes the view that Labor's proposed legislation should be supported and that the sharing of explicit images without consent should be made a Federal crime, saying:

"Labor’s proposed bill deserves our attention in order to make the sharing of explicit images without consent a Federal crime."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Related Articles: