Sextortion Laws In Australia

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Sextortion

There have been a rise of  attempts in Australia of ‘sexual extortion’, abbreviated to ‘sextortion’, with social media sites being used to target and blackmail victims, many of whom are young men concerned about compromising images being distributed to friend, family, schoolmates and the wider community.

Here’s a rundown of the laws related to engaging in such conduct.

What is sextortion?

According to the Australian eSafety Commissioner,  sextortion is a form of blackmail whereby a person – the perpetrator – threatens to share images of video of private parts of another – the victim – unless the latter submits to demands, such as giving money or engaging in directed conduct.

Perpetrators often target people through dating sites, social media and gaming apps, pretending to be attractive persons looking for sexual activity.

The blackmailer then tricks their victim into sending nudes or sexual images or videos, or records intimate acts during a live chat without the person’s consent .

Once they have obtained intimate content, perpetrators threaten to share the content with others unless their demands are met.

The Commissioner reports that there were more than 1,700 sextortion complaintsmade in the first half of 2023, more than double that received the previous year.

And according to the Australian Federal Police, 90% of victims of sextortion are young males, many under the age of 18 years.

Current sextortion laws in Australia

Sextortion is criminalised in Australia under stand alone State and Territory criminal offences for revenge pornography as well as extortion or blackmail.

Offending is also encompassed by Federal offences regarding utilising a carriage service to menace, harass or cause offence.

New South Wales sextortion laws

Under NSW criminal law, the offence of recording an ‘intimate image’ a person  without their consent is outlined under Section 91P of the Crimes Act 1900. section 91P of the Crimes Act 1900.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You intentionally recorded an intimate image of another person,
  2. Without that person’s consent,
  3. Knowing the other person did not consent, or being reckless as to whether they were consenting.

Section 91Q of the Crimes Act 1900 (NSW) outlines a related offence for anyone who intentionally distributes an intimate image of another person without their consent, or being reckless to the fact that the other person did not consent.

To “distribute” includes

  • Sending, supplying, exhibiting, transmitting or communicating to another person; or
  • Making available for viewing or access by another person.

Finally, section 91R prescribes the same penalty for anyone who threatens to record or distribute an intimate image without consent, intending the other person to fear the threat would be carried out.

Sextortion is also a form of blackmail, which is an offence under section 249K of the Crimes Act 1900 (NSW).

This offence applies when a person makes any unwarranted demand with menaces with the intention of:

  • obtaining a gain or causing a loss, or
  • influencing the exercise of a public duty.

Section 249L notes that a demand with menaces is ‘unwarranted’ unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menace is a proper means of reinforcing the demand.

Section 249N defines the terms ‘gain’, ‘obtaining a gain’, ‘loss’ and ‘causing a loss’:

  • A ‘gain’ is defined as any gain in money or other property, whether temporary or permanent, and includes keeping what one has.
  • ‘Obtaining a gain’ includes obtaining a gain for oneself or for another person.
  • A ‘loss’ is a loss in money or other property, whether temporary or permanent, and includes not getting what one might get.
  • ‘Causing a loss’ includes causing a loss to another person.

Federal sextortion laws

As many revenge porn offences occur over the internet, there is also the potential of a charge of utilising a carriage service to menace, harass or cause offence under Section 474.17 of the Criminal Code Act 1995– which is a piece of legislation that applies across Australia.

An aggravated version of the offence exists under section 474.17A if a person commits an offence under section 474.17 of the Act, and the offence involves the transmission, making available, publication, distribution, advertisement or promotion of private sexual material.

Moreover, the Enhancing Online Safety Act 2015 (Cth) established a civil penalty scheme empowering the eSafety Commissioner to remove images online and, in some cases, take action against the person who shared, or threatened to share, an intimate image without consent.

Victoria

Under VIC criminal law, a number of offensive are outlined in relation to use of an ‘intimate image’ without consent under Crimes Act 1958 (VIC). This includes:

The offence of blackmail is outlined under section 87 of the Act.

Queensland

Under Qld criminal law, the offence non-consensual distribution of ‘intimate images’  is outlined under section 223 of the Qld Criminal Code.

The offence of extortion is outlined under section 415 of the Code.

Australian Capital Territory

Under ACT criminal law, the offence of non-consensual distribution of ‘intimate images’  is outlined under section 72C of the Crimes Act 1900 (ACT).

This becomes an ‘aggravated offence’ if it occurs within the context of family violence.

The offence of blackmail is outlined under section 342  of the Criminal Code Act 2000.

Tasmania

Tasmania does not have a standalone offence of revenge porn.

The offence of blackmail is outlined under section  241 of the Criminal Code 1924

Northern Territory

Under NT criminal law, the offence non-consensual distribution of ‘intimate images’  is outlined under section 208AB of the NT Criminal Code.

The offence of blackmail and extortion is outlined under section 228AO of the Code

South Australia

Under SA criminal law, the offence of non-consensual distribution of an ‘invasive image’ of another person knowing or having reason to believe they do not consent is outlined under section 26C of the Summary Offences Act 1953.

The offence of blackmail is outlined under section 172 of the Act.

Western Australia

Under WA criminal law, the offence non-consensual distribution of ‘intimate images’  is outlined under section 221BF of the WA Criminal Code.

The offence of demanding property with threats with intent to extort or gain is outlined under section 397 of the Code.

Examples of sextortion in Australia

In 2018, consumer protection authorities warned about a notable rise in ‘sextortion’, with scammers increasingly targeting men on social media and dating websites. In this report they gave examples of common sextortion scenarios.

In the most common scam, models were being used to entice victims into sending explicit photos and videos of themselves, which were then being used for blackmail. In some cases, the targets were invited to have cyber-sex via Skype, which was recorded.

A 36-year-old Western Australian man sent a video of himself to a woman he thought he knew and befriended on Facebook. But the woman turned out to be a scam artist, who demanded $5,000. When he refused to pay, the video was sent to his girlfriend.

In another case, a 21-year-old man sent a video to a woman he had just met online and was then told the footage would be sent to his family and ex-girlfriend if he didn’t transfer $1,000. The scammers then sent a message to his mother and uncle to show they were serious about the threat.

Understanding sextortion laws in Australia

It’s important to understand the various terms which constitute elements of sextortion laws across Australia.

An intimate image

Revenge porn laws are usually focused on ‘intimate’ images.

Under NSW revenge porn laws an ‘intimate image’ is defined as:

  • An image of a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
  • An image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.

A ‘private act’ includes depictions of someone in a state of undress, using the toilet, showering, bathing, engaged in a sexual act or engaged in any other like activity.

Private sexual material

The aggravated Federal offence applies to ‘private sexual material’.

The phrase “private sexual material” refers to material that:

  • Depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or
  • Material the dominant characteristic of which is the depiction of: a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or  the breasts of a female person who is, or appears to be, 18 years of age or older where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.

Menaces

Under Federal criminal laws, acts deemed as “menaces” are defined under section 138.2 as including:

  • A threat (whether express or implied) of conduct that is detrimental or unpleasant to another person;
  • A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.

Under NSW criminal law, acts deemed as menaces are defined by section 249M to include:

  • an express or implied threat of any action detrimental or unpleasant to another person, and
  • a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.

Cause offence

Under Federal criminal laws, a “offensive” is not defined.  However, section 473.4 of the Code states that in determining whether material is offensive, reference is to be had to:

  • the standards of morality, decency and propriety generally accepted by reasonable adults; and
  • the literary, artistic or educational merit (if any) of the material; and
  • the general character of the material (including whether it is of a medical, legal or scientific character).

Revenge porn

Revenge porn’ refers to the dissemination of sexually explicit images or media without the subject’s permission.

This type of material is typically distributed by a former lover following the breakdown of a relationship, but it can also include media obtained and disseminated by a hacker or unrelated person.

Catfishing

Catfishing is the act of luring others into relationships by creating fictional online personas.

Catfishers may do this to increase their chance of sparking an online relationship or having their target agree to meet up, to extract financial or other material benefits from their hapless victims, or even to groom underage persons for sexual purposes.

And while catfishing is generally considered to be immoral, it does not always amount to an offence.

Grooming

Child grooming is befriending and establishing an emotional connection with a child with the intention of forming a sexual relationship. People who want to groom children often befriend them online, establishing a bond.

Occasionally these groomers pretend to be young people themselves.

What’s the penalty for sextortion offences in Australia?

Penalties for NSW sextortion offences

The maximum penalty for committing a revenge porn offence under the NSW criminal law is  a fine of $11,000 and/or three years imprisonment.

Penalties for Federal sextortion offences

The maximum penalty for committing federal revenge porn offences is 3 years imprisonment for the standard offence and 6 years imprisonment for the aggravated offence.

Penalties for Victorian sextortion offences

The maximum penalties for the various Victoria revenge porn offences is 3 years imprisonment and for the blackmail offence the maximum penalty is 15 years imprisonment.

Penalties for Queensland sextortion offences

The maximum penalty for committing a revenge porn offence in Queensland is 3 years imprisonment.

For the extortion offence, maximum penalties depend on the surrounding circumstances:

  • If carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offender—life imprisonment; or
  • If carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise)—life imprisonment; or
  • Otherwise—14 years imprisonment.

Penalties for Australian Capital Territory sextortion offences

The maximum penalty for the general revenge porn offence in the ACT is 300 penalty units or 3 years imprisonment or both, whilst the aggravated revenge porn offence carries a maximum penalty of 400 penalty units of 4 years imprisonment of both.

For the blackmail offence the maximum penalty is 1400 penalty units, imprisonment for 14 years or both.

Penalties for Tasmanian sextortion offences

The maximum penalty for committing a blackmail offence is 21 years imprisonment.

Penalties for Northern Territory sextortion offences

The maximum penalty for committing a revenge porn offence in Northern Territory is 3 years imprisonment and for the blackmail offence the maximum penalty is 14 years imprisonment.

Penalties for South Australian sextortion offences

The maximum penalties for the revenge porn offence in South Australia are:

  • $10,000 or imprisonment for 2 years for a general offence.
  • $20,000 or imprisonment for 4 years if the victim of the offence is under the age of 17 years.

For the blackmail offence the maximum penalty is:

  • for a basic offence—imprisonment for 15 years;
  • for an aggravated offence—imprisonment for 20 years.

Penalties for Western Australian sextortion offences

The maximum penalty for committing a revenge porn offence in Western Australia is 3 years imprisonment and for the extort or gain offence the maximum penalty is 14 years imprisonment.

Defences to sextortion laws

If you have been accused of a sextortion offence, it is important to be aware that the prosecution must prove beyond reasonable doubt that you are actually responsible before you can be found guilty.

In addition to the prosecution having to prove each ‘element’ of the offence, it must prove beyond reasonable doubt that a legal defence such as duress, necessity or self-defence is unavailable where some evidence of the defence is raised.

Prominent sextortion cases in Australia

Grindr Sextortion Case

In 2018, a 25-year old from Albion Park named Jayson Hastie set up a fake profile on under the name of ‘Alex’ on the bisexual and gay social networking and dating website Grindr, before getting to work.

His profile soon attracted the attention of an older man, who Mr Hastie wooed for two-weeks, exchanging several sexually explicit messages and calls. The pair agreed to meet at a Police Citizens Youth Club on a Wednesday. The older man turned up, but ‘Alex’ did not.

Mr Hastie later called to apologise, and the vulnerable victim agreed to give him a second chance. The pair then met at another location, and Hastie got into the backseat of the older man’s car.

Mr Hastie then said “You have been pinged”, telling the victim he was an undercover police officer and that a disc in his hand was a tracker that could be used to bring other officers to the location.

“You don’t have to say anything but whatever you do say can be used as evidence in court”, Mr Hastie told the man.

Hastie then searched the victim’s car.

The older man agreed to Hastie’s demand for $2,000 and ongoing help. “If you don’t all the transcripts [and] photos will be going to police”, Mr Hastie threatened. The victim then drove to a nearby shopping centre, withdrew the cash and gave it to the younger man. “If you ever do this again, I’ll find you and break your legs”, Hastie warned.

The victim later figured out that things weren’t quite right, and contacted the police.

Going to court?

If you are going to court for a sextortion offence , call Sydney Criminal Lawyers® anytime on (02) 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer, who will take the time to advise you of your options, the best path forward and the costs involved.

We offer fixed fees for most criminal and traffic cases.

 

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Authors

Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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