What is ‘Revenge Porn’?
Revenge porn is a type of image-based abuse in which intimate or sexually explicit photos or videos are shared or threatened to be shared online without the consent of those pictured. Also considered non-consensual pornography, this conduct is a criminal offence.
This conduct typically occurs in the context of current or former relationships in which a jilted partner posts images to social media, emails them to individuals, such as friends or employers, or uploads them to pornographic websites. The intention of perpetrators engaging is usually to humiliate the victim for ending the relationship or to blackmail the victim into resuming the relationship. Motivation may also extend to attempts to achieve financial advantage or notoriety.
Revenge porn & blackmail porn laws
In Victoria, several laws known as ‘intimate image offences’ criminalise revenge porn by making it an offence to produce, distribute or threaten to distribute intimate images without a person’s consent. Blackmail porn, or the act of threatening to distribute an intimate image for financial or other gain, is also criminalised by the offence of blackmail (see ‘what is blackmail porn‘ below). More recent behaviours that these offences may cover include ‘morph porn’ or ‘deep fake porn’, which relates to the use of software or artificial intelligence to non-consensually alter, distribute or threaten to distribute nude or sexual imagery of a person digitally.
Revenge porn offences
At the state level, in Victoria, ‘Revenge Porn’ is criminalised by the offences to produce, distribute or threaten to distribute intimate images without a person’s consent under the Crimes Act 1958.
These are indictable offences and are subject to a maximum penalty of 3 years of imprisonment:
- Producing intimate image (s53R)
- Distributing intimate image (s53S)
- Threat to distribute intimate image (s53T)
Victorian reforms commenced 30 July 2023
Until 30 July 2023, the offences and relevant exceptions for the production, distribution and threat to distribute intimate images were addressed under sections 41B to 41DB (now repealed) of the Summary Offences Act 1966.
Reforms implemented under the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 made intimate image crimes indictable by moving these provisions to the Crimes Act 1958, rendering them more serious offences.
The reforms increased the maximum penalty for these offences to 3 years, tailored provisions on consent to produce or distribute images and introduced a process for the Court to order that material containing intimate images be destroyed.
Offending conduct committed from 30 July 2023 is governed by the Crimes Act 1958, and the Summary Offences Act 1966 applies to offences committed before 30 July 2023.
Production and distribution of intimate images
The offences of ‘producing an intimate image’ and ‘distributing an intimate image’ are indictable and fall under sections 53R and 53S of the Crimes Act 1958, respectively.
While separate offences, the production and distribution offences contain the same elements.
The prosecution must prove the following four elements, beyond reasonable doubt, for a jury to find an accused person guilty of producing or distributing an intimate image:
- An accused person (A) intentionally produces or distributes an image depicting another person (B);
- the image is an intimate image;
- A knows the image is, or probably is, an intimate image; and
- the production or distribution is contrary to community standards of acceptable conduct.
Exceptions to production and distribution offences
The accused person (A) does not commit the offence of production or distribution of an intimate image against person (B) under sections 53R(3) and 53S(3) if:
- B is not a child; and
- at the time of the production or distribution, B consented to how the intimate image was produced or distributed.
Additionally, the accused (A) does not commit an offence against person (B) under section 53S(4) if:
- B is not a child;
- the intimate image has previously been distributed publicly;
- B consented, or a reasonable person would believe B consented, to that previous distribution; and
- a reasonable person would believe B consented to the distribution of the image.
If an accused (or the defence) establishes sufficient evidence to raise an exception of ‘consent’ to the offending conduct (i.e. meet the evidentiary onus), the onus of proof falls on the prosecution to disprove the exception beyond a reasonable doubt.
Notably, the specific exceptions for producing and distributing intimate images only apply to offences from 30 July 2023. Relevant exceptions before this date are found in the former (repealed) section 41D of the Summary Offences Act 1966.
Consent to production and distribution
The definition of consent concerning the production and distribution of an intimate image is defined under section 53P of the Crimes Act 1958 and means free and voluntary agreement.
Intimate image offences apply specific ‘non-consent’ provisions under sections 53P and 53Q (applicable since 30 July 2023). These consent provisions are distinct from consent laws applying to sexual offences under sections 36 and 36AA.
Circumstances in which a person does not consent to production – s53P(2)
A person (B) does not consent to produce an intimate image just because they consented to produce a different intimate image (including an intimate image produced on a different occasion or in a different way).
Circumstances in which a person does not consent to production or distribution – s53Q
Circumstances in which a person (B) does not consent to the production or distribution of an intimate image include:
- B does not say or do anything to indicate consent to the production or distribution of the intimate image.
- B agrees to the production or distribution due to force, or fear of force, or harm of any type to B or someone else, for example:
- economic or financial harm
- reputational harm
- harm to B’s family, cultural or community relationships
- harm to B’s employment
- family violence involving psychological abuse or harm to mental health
- sexual harassment.
- B agrees to the production or distribution because of coercion or intimidation.
- B agrees to the production or distribution because of abuse of a relationship of authority or trust.
- The person is asleep or unconscious.
- The person is so affected by alcohol or another drug to be incapable of consenting.
- The person is so affected by alcohol or another drug to be incapable of withdrawing consent.
Threat to distribute intimate images
Since 30 July 2023, the ‘threat to distribute intimate image’ offence falls under section 53T of the Crimes Act 1958.
The prosecution must prove the following elements, beyond a reasonable doubt, for a jury to find an accused person (A) guilty of threat to distribute an intimate image:
- A makes to another person (B) a threat to distribute an intimate image;
- the distribution of the image would be contrary to community standards of acceptable conduct; and
- A intends that B will, or probably will, believe the threat will be carried out.
In this context, a threat to distribute an intimate image may be explicit or implicit and made by words or conduct per section 53T(3).
Community standards of acceptable conduct
Under section 53U of the Crimes Act 1958, whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the following circumstances:
- The nature and content of the intimate image;
- The circumstances in which the intimate image is 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.
Sentencing intimate image offences
The maximum penalty in Victoria for the production, distribution or threat to distribute intimate images without a person’s consent is 3 years imprisonment.
Intimate image offences are not registrable offences under the Sex Offenders Registration Act 2004 (Vic).
When sentencing a person convicted for an intimate image offence, the Court is prohibited from considering an offender’s good character or lack of previous convictions if their good character or lack of previous convictions assisted in committing the offending conduct (see s5AA of the Sentencing Act 1991).
What is ‘Blackmail Porn’?
Making demands with a threat to distribute an intimate or sexual image or video may also constitute the offence of blackmail under section 87 of the Crimes Act 1958. Blackmail is subject to a maximum penalty of 15 years imprisonment.
Blackmail is defined as making an unwarranted and menacing demand with the intention to gain for oneself or cause loss to another. ‘Blackmail porn’, therefore, is the act of making demands with a threat to distribute an intimate or sexual image or video.
See ‘Is Blackmail Illegal?‘ for more information about this offence.
County Court ‘Blackmail porn’ case example
In DPP v Shane McCusker (a pseudonym), the offender, aged 47 and employed by a logistics company, engaged in a protracted campaign of harassment and blackmail against the victim, who was his co-worker with whom he formerly had an affair. In February 2021, the offender contacted the victim using an anonymous mobile number. The offender demanded sexual material and threatened to share what material he already possessed with the victim’s then-partner. The offender persistently messaged the victim through various online platforms and created false identities to disseminate explicit content. He even used her work email and her partner’s details for intimidation. Investigators traced the digital accounts to an IP linked to the offender’s partner, leading to his arrest in July 2021. His devices contained substantial incriminating evidence.
During sentencing, following a guilty plea to blackmail, Her Honour Judge Blair considered the offender’s otherwise good character, lack of criminal history, plea of guilty and excellent prospects of rehabilitation. Her Honour denounced the offending as ‘outrageous’ and severe but considered community protection could best be achieved through rehabilitation. Her Honour imposed a 3-year community corrections order with conditions to undertake a sex offender program and assessment and treatment for alcohol use.
Commonwealth offences
The federal law in Australia also addresses offending conduct related to revenge porn and blackmail porn in the Criminal Code Act 1995 and the Online Safety Act 2021.
Offence to use carriage service to menace, harass or cause offence
Under section 474.17A(1) of the Criminal Code Act 1995 (Cth), is it an offence to use a carriage service to engage in conduct that would be menacing, harassing or offensive to a reasonable person, and involves the transmission, publication, distribution or promotion of ‘private sexual material‘.
Use of a ‘carriage service’ includes communications via text, phone call, social media and email.
Conduct is ‘menacing, harassing or offensive’ if it is likely to arouse significant anger, resentment or disgust, and it is not sufficient if the conduct merely hurts or wounds a person’s feelings (Monis v The Queen).
‘Private sexual material’ is defined as:
- Material that depicts a person who is 18 years or older and who is engaged in a sexual pose or sexual activity in circumstances that a reasonable person would regard as private; or
- Material in which the dominant characteristic is the depiction of a sexual organ, anal region or breasts of a person 18 years or older in circumstances that a reasonable person would regard as private.
A penalty of up to 7 years of imprisonment applies to this offence.
Offence to post an intimate image
Under section 75(1) of the Online Safety Act 2021 (Cth), it is an offence to non-consensually post or threaten to post an intimate image of a person if the accused or the person depicted is ordinarily a resident in Australia.
A civil penalty of up to 5 years imprisonment or 500 penalty units applies to this offence.
What to expect if you are charged
If you have been charged for sharing an intimate image without consent, blackmail or revenge porn offences, you will usually be requested to attend a formal police interview. This interview is recorded and may later be used as evidence against you.
Whether to comment on your record of interview requires careful consideration and could be the difference between a finding of guilty or not guilty to the charges. You have a right to contact a lawyer before your interview, and it is essential that you do so to ensure you have adequate support and advice.
Why it’s essential to have a sex offence lawyer
Intimate image abuse, blackmail, and other offences related to sharing intimate images without consent have severe implications. The law is constantly changing, and there have been many amendments to non-consensual production, distribution or threat to distribute intimate images, especially concerning consent, penalties and criminal procedure.
The Victoria Police have specialised units to investigate sexual offence allegations, and the Courts have specialist lists to manage sex offence matters. A legal practitioner with specialist experience defending these charges is essential to manage your matter effectively, navigate this complex area and achieve the best outcome.
See here for more information about our sex offence lawyers.
