Adapting laws to technological developments

Background

Image-based abuse is not a new phenomenon. The non-consensual act of taking or sharing (or threatening to share) images of someone undressed, nude, or doing certain things in private has been around since the invention of personal cameras and portable video recorders.

In the past, technology limited how easy it was to commit such abuse and how widely images could be shared. But the rise of the internet, social media, and camera smartphones with web access has made it easier to take and share intimate images with huge audiences instantly. As a result, the occurrence of intimate image-based abuse has escalated. A 2020 study found that 35% of Australians had been victims of such abuse, up from the 2015 rate of 1 in 5.

While aspects of ACT law could be used to prosecute certain kinds of image-based abuse (for example, in relation to certain computer offences under the Criminal Code 2002 or offences relating to ‘intimate observations’ under the Crimes Act 1900), the problem was that the act of non-consensually distributing intimate images of a person was not a crime in and of itself. As technological developments made imaged-based abuse easier to commit and with greater impacts on victims, this legal gap could make criminal prosecution difficult to pursue.

What's in a name?

‘Revenge porn’ is a term commonly used to describe image-based abuse, but it is misleading because it suggests the abuse is only about getting revenge and treats it like pornography. ‘Intimate image-based abuse’ is a better term because it focuses on the act’s lack of consent and the harm of invading someone’s of personal privacy.

Adapting the law

Proposing two solutions

On 7 June 2017, two separate proposals were raised in the Assembly to update ACT law to address this legal gap. Jeremy Hanson MLA (Liberal) presented the Crimes (Intimate Image Abuse) Amendment Bill as a private member’s bill. The bill had previously been released in an exposure draft form  and was modified following community consultation. Among other things, the bill sought to amend the Crimes Act 1900 to:

• Create two new offences being the non-consensual distribution and the threat of distribution of intimate images with a maximum penalty for each offence of 3 years imprisonment, a fine of 300 penalty units, or both
• Introduce protections/exceptions for young people who send consensual intimate images in certain circumstances, and
• Give ACT courts the power to order copies of intimate images be removed or deleted.

On the same day, Caroline Le Couter MLA (Greens) presented an exposure draft of the Crimes (Invasion of Privacy) Amendment Bill . Like Mr Hanson’s bill, the exposure draft bill also sought to create offences in relation to non-consensual distribution of intimate images and to address several other matters. Among other things, it sought to:

• Create a new Part of the Crimes Act 1900 to directly address invasions of privacy
• Move and amend section 61B of the Crimes Act (that was originally inserted to address certain ‘voyeuristic behaviours’ including the phenomenon known as ‘upskirting’)
• Create two new offences being the non-consensual distribution and the threat of distribution of intimate documents (including images) with a maximum penalty for each offence of 2 years imprisonment, a fine of 200 penalty units, or both, and
• Clarify and expand the definition of consent for both invasions of privacy and sexual offences.

Cross-party collaboration

When talking about their bills, both members noted that all three parties in the Assembly wanted to address the issue of intimate image-based abuse and had expressed interest in collaborating:

Between June and August 2017, Mr Hanson, Ms Le Couteur, and Attorney-General Gordon Ramsay MLA (Labor) worked together to refine aspects of Mr Hanson’s bill to address different technical and policy requirements. They also spoke with officials from government agencies, outside organisations and experts that had offered suggestions about the earlier drafts of the two bills.

On 16 August 2017, the bill came back before the Assembly and amendments were proposed  to reflect previous discussions between Mr Hanson, Ms LeCouteur and Mr Ramsay (see schedule 1 of the Minutes of Proceedings). These included the following proposed changes:

• Adopting more inclusive language used elsewhere in the Crimes Act.
• Revising the definition of intimate image.
• Add a clause to lower the age of the existing crime of sharing intimate images of a young person from 18 to 16.
• Change the proposed exception for consensual intimate image sharing by 14-to-17-year-olds from prosecution into a defence that required certain conditions to be proven in court.

Passing the bill

On 17 August 2017, the Assembly resumed debate on the Crimes (Intimate Image Abuse) Amendment Bill. During the debate, many MLAs acknowledged the importance of collaborating and reaching consensus on finding the best way forward:

The 29 amendments developed collaboratively were proposed and passed unanimously by the Assembly. The bill, with its changes, was then passed by the Assembly on the same day. It was enacted on 30 August 2017, becoming the Crimes (Intimate Image Abuse) Amendment Act 2017 .

Because the Act was an amending law (a law that makes changes to an existing law), rather than a standalone law, it was automatically repealed after its changes had come into effect in the Crimes Act.

The substantive changes that the Act made can be found at Part 3A of the Crimes Act 1900 .

Outcomes

The ACT became the fourth Australian jurisdiction to create specific crimes for intimate image-based abuse (SA in 2013, Victoria in 2014, and New South Wales two months earlier in June 2017).

The Canberra Times reported that by March 2018 – seven months after the law was enacted – three people had been charged with the new image-based abuse crimes. In July, a University of Canberra exchange student became the first person to be sentenced under the law for non-consensually sending an intimate image of someone else over Snapchat.

Reports of image-based abuse to police are underreported. ACT Policing and academics have attributed this to the embarrassment victims felt from their trust being betrayed, the stigma of the crime, the fear of retribution, and a misunderstanding that the crime only applied when revenge was the motive. Victim-blaming also remains a significant barrier to reporting .

Where to get more information

If you think that you or someone you know has experienced image-based abuse, read the advice from Youth Law Australia about seeking legal advice, getting images removed, and reporting abuse.

Legal Aid ACT runs a free, confidential Youth Law Centre you can talk to over the phone, visit by appointment, or can come to your school (public colleges only):

• Website: legalaidact.org.au/what-we-do/youth-law-centre
• Phone: (02) 6173 5410 (direct) or 1300 654 314 (free call, ask for the Youth Law Centre)
• Email: ylc@legalaidact.org.au

If you or someone you know need to talk to someone, you can free call the numbers below:

• Kids Helpline : 1800 551 800 (24/7, for young people ages 5 to 25)
• Headspace : 1800 650 890 (9am-1am daily, for young people ages 12 to 25)
• QLife : 1300 184 527(3pm-midnight daily, for LGBTQIA+ people of all ages)
• 1800RESPECT: 1800 737 732 (24/7, for all ages)
• Lifeline : 131 114 (24/7, for all ages)

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