Is it illegal to videotape your partner?

With the explosion of smart phones, tablets and social media, the posting of nude photos and explicit videos online has become commonplace. Some view this “sexting” as another form of sexual expression but what are the costs of this popular practice?

The term ‘sexting’ refers to the sending and receiving of sexual or nude images through electronic communications and devices such as a cell phone or via social media (i.e. Instagram, Snapchat, Facebook, emails and web-cams). Basically ‘sexting’ is any message sent that contains an image or video that includes nudity, partial nudity, genitalia, someone posing in a sexual way or performing a sexual act (Source: Huffington post).

However, according to the Law Reform Committee of Victoria, with apps and online programs constantly evolving, the term ‘sexting’ can encompass a wide range of practices, motivations and behaviours.

The Australia Institute of Criminology released a report in 2015 entitled Sexting among young people: Perceptions and practices. According to the report 49 per cent of the people in the study reported sending a sexual picture or video of themselves to somebody else. Another 67 per cent reported being the recipient of an explicit image.

But how many of these ‘sexts’ did the sender really want to send?

An investigation conducted by RMIT, Not Just Revenge Pornography: Australians’ Experience Of Image Based Abuse’, revealed that one in five Australians between the ages of 16 and 49 fell victim to intimate images of themselves being shared without their consent. Thirty per cent reported that they did not want to send a ‘sexual selfie’ but felt pressured to.

The report also revealed that youth aged 16 to 29 years old and 50% of people with a disability were at higher risk of image-based abuse.

According to the eSafety commissioner, 20% of Australians aged between 16 and 49 have experienced some form of image-based abuse. The report also revealed that young women and indigenous Australians were more likely to be victims to this type of abuse than any other demographic.

When is photographing/recording something illegal?

When and under what circumstances is it illegal to videotape your partner? When does seemingly innocent ‘sexting’ become a criminal offence?

Sexting or sending nude/explicit images online is legal except currently under two conditions. The first is based on age and the second on consent.

First, under new NSW law videotaping or photographing intimate images of a person without his or her consent is illegal. The Crimes Amendment (Intimate Images) Bill 2017 states it is an “offence for a person to intentionally record or distribute, or threaten to record or distribute, an intimate image of another person without that person’s consent.”

The penalty for recording or sharing intimate images that the other person did not agree to is up to three years imprisonment and/or as much as $11,000 in fines.

Second, regardless if the person agreed or not, taking, keeping, posting, sending or encouraging someone to take a sexual image of anyone under the age of 18 (or even of someone who just looks under 18) is a crime under Commonwealth law. This is called “child pornography” or “child exploitation material” and is illegal even if the person in the image said it was ok. If an individual who is accused of taking (or having/sending) this kind of image is under the age of 18 he or she can only be charged if the Attorney-General agrees.

Even if the sender is of age and consented to the receiver viewing the sext, consent is only for the person that received the message. It does not mean that the person who received the explicit image can go around and show it to all of his buddies

Image Based Abuse

Image based abuse covers all non-consensual sexting. It also covers ‘creep shots’ – up skirting or down blousing photographs, according to Dr Nicola Henry, Lead Investigator of the RMIT study.

Image based abuse also covers instances where sexual assaults have been recorded and later shared or when hackers distribute images they uncovered while hacking into someone’s device or online account.

Revenge porn

Revenge porn also includes the intentional sharing or illegal distribution of explicit images without consent including faked nude photos. However, revenge porn laws critics argue are very narrowly defined and do not include motivations such as blackmail, control, sexual gratification, or monetary gain by people the victim either knows (i.e. family, friends or intimate partners) or by strangers the victim may have never met.

Revenge porn is normally understood within the confines of an image being released once a relationship goes sour and the jilted partner wants to get even with the other person.

Photographs do not have to be taken by the person to be considered revenge porn. If the perpetrator finds an image for example on his partner’s phone and uploads it or photoshops an image to make it sexual, then it also constitutes revenge porn.  

Whether it is revenge porn or image based abuse they are both a crime and perpetrators should be punished.