The Law Handbook 2024

156 SECTION 3: Fines, infringements and criminal law Administration of an intoxicating substance for a sexual purpose (‘date rape’) Just because a person voluntarily drinks alcohol or takes drugs does not mean that they are in any way responsible for a sexual assault happening to them. You cannot consent if you are unconscious or overwhelmingly affected by drugs and/or alcohol. Under section 46 of the Crimes Act, a person commits this offence if they administer an intoxicating substance, or they cause an intoxicating substance to be taken, with the intention of impairing that person’s capacity to give or withdraw consent to take part in a sexual act. (See ‘Consent’, above.) An ‘intoxicating substance’ is any substance that affects a person’s senses or understanding (i.e. drugs or alcohol). This crime is punishable by up to 10 years’ imprisonment. Sexual exposure Under section 19 of the Summary Offences Act 1966 (Vic) (‘ SO Act ’), it is an offence for a person to intentionally expose their genitals, this exposure is sexual and within view of a public place. This crime is punishable by up to two years’ imprisonment. Image-based sexual offences (including ‘revenge porn’ and ‘deep fakes’) Image-based sexual offences include the distribution, production and threat to distribute or produce intimate images – including intimate images that are generated or altered. The Crimes Act (s 53O) includes the following definitions in relation to image-based sexual offences. ‘ Intimate image ’ means an image depicting: • a person engaged in a sexual activity; or • a person in a manner or context that is sexual; or • the genital or anal region of a person (whether bare or covered by underwear); or • if a person is female, or a transgender or intersex person identifying as female, the breasts of the person. ‘ Distribute ’, in relation to an image, includes: • publishing the image; and • exhibiting, communicating, sending, supplying or transmitting the image to any other person; and • making the image available for access by any other person; and • electronic material includes data from which images may be generated. ‘ Produce ’, in relation to an image, means filming, recording, taking or otherwise capturing the image, or digitally creating the image. An ‘ image ’ may be: • still, moving, recorded or unrecorded; and • digitally created by: – generating the image; or – altering or manipulating another image. This broad definition includes ‘live-streaming’. It also includes the production of ‘deepfake’ images. ‘ Deepfake pornography ’ refers to images that have been digitally generated, altered, or manipulated to appear to be intimate images of a person. Consent (see s 53P Crimes Act) in relation to image-based section offences is consistent with the definition in section 36 set out above. A person’s consent to one action in relation to an intimate image does not, by itself, constitute consent to another action in relation to that image or another image. For example, consenting to a photograph being taken but not a video being recorded. Section 53Q of the Crimes Act sets out a non-exhaustive list of circumstances where a person does not consent to the production or distribution of an intimate image, this adapts section 36AA of the Crimes Act (set out above). For an image-based sexual offence to occur, a person has to know that the image is, or probably is, an intimate image and the production of the intimate image is contrary to community standards of acceptable conduct. Image-based sexual offences include: • producing an intimate image (s 53R Crimes Act); for example, live-streaming footage from a hidden camera or digitally putting another person’s face onto a photograph of a naked person; this crime is punishable by up to three years’ imprisonment; • distributing an intimate image (s 53S Crimes Act); for example, posting a picture of someone engaged in a sexual act on social media without their permission or sending a picture of some-