The Law Handbook 2024

Chapter 3.3: Sexual offences 157 one’s genitals to another person without their consent; this crime is punishable by up to three years’ imprisonment. This is not an offence if: – the person depicted is not a child, and – at the time of the production or distribution, they consented to the production or distribution and how the intimate image was produced or distributed, and – the intimate image had been distributed previously to a place to which members of the public had access, and – the person was of the reasonable belief that they consented to this previous distribution, – in all the circumstances, a reasonable person would believe that they consented to the current distribution. A threat to distribute an intimate image (s 53T Crimes Act) may be made by words or conduct or be explicit or implicit. This crime is punishable by up to three years’ imprisonment. It is not a defence to the above offences if, at the time of the conduct, a person was under a mistaken but honest and reasonable belief that the production or distribution of the intimate image was not contrary to community standards of acceptable conduct (see s 53V Crimes Act). Whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances (see s 53U Crimes Act). Circumstances include: • the nature and content of the intimate image; • the circumstances in which the intimate image was produced or distributed; • the age, intellectual capacity, vulnerability, or other relevant circumstances of a person depicted in the intimate image; • the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image. If the person who committed one of the above offences was under the age of 16 years at the time, the Director of Public Prosecutions must consent to the prosecution (see s 53W Crimes Act). Sections 53X–53ZA of the Crimes Act create an intimate image disposal order scheme that is similar to the child abuse material disposal order scheme contained in sections 51W–51Y of the Crimes Act. Behaviour related to image-based sexual offences could also be punishable under section 474.17 of the Criminal Code Act 1995 (Cth). Under this Act, it is an offence to use a carriage service to menace, harass or cause offence. ‘Carriage service’ is defined in the Telecommunications Act 1997 (Cth); a carriage service includes most electronic communication (e.g. social media, texting, emails). This crime is punishable by up to three years’ imprisonment. There is a related offence in the SO Act: intentionally observing a person’s genital or anal region with a device (s 41A); this crime is punishable by up to three months’ imprisonment. Many people do not report image-based sexual offences because they are embarrassed and scared. If any of this behaviour has occurred with someone you have had an intimate relationship with, the behaviour could also be considered to be family violence (see Chapter 4.4: Family violence). If you need support or help in relation to image- based sexual offences, see the services listed at the end of this chapter. Abduction or detention for a sexual purpose Under the Crimes Act (s 47), a person commits this offence if they take, or cause someone to take, a person away or detain them without their consent. This is done with the intention that the person will take part in a sexual act with them or another person. This crime is punishable by up to 10 years’ imprisonment. Offences involving commercial sexual services Sexual servitude Sections 53B, 53C, 53D and 53C set out offences in relation to inducing, forcing or threatening another person to provide commercial sexual services – see Chapter 3.4: Sex Work for more information. Incest Under section 50C and 50D of the Crimes Act, a person commits incest if they take part in an act of sexual penetration with someone they know to be their child, step-child or other lineal descendant, or their de facto partner’s child, step-child or other lineal descendant who is under the age of 18. This