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The digital age has brought with it a range of benefits but also unique means for people to violate the privacy and consent of others. ‘Cyber-flashing’ is a form a digital sexual harassment that involves sending unsolicited nude or sexual images to another person without their consent.

For more on cyber flashing laws or related criminal law topics, get in touch with our criminal lawyers Sydney team for a confidential meeting.

As a form of cyber-crime, the following outlines what cyber-flashing is and what criminal offences could apply to the actions on a State, Territory or Federal level across Australia.

 

What is Cyber-flashing?

Cyber-flashing can encompass the sending of a variety of unsolicited nude or sexual images, although the most common form is the sending of ‘dick pics’ to women online without their consent.

This can occur through various methods, including direct messages on social media platforms, or technologies like AirDrop, which allows images to be sent between Apple devices within close proximity.

Research indicates that nearly half of young adult women have received such unwanted, graphic images from men, often describing the experience as “violating.” This has prompted some regions, such as the United Kingdom, to consider specific criminal offences to address cyber-flashing.

 

The Summary Offence of Obscene Exposure

 It might first seem that cyber-flashing should be covered by existing obscene exposure or indecent exposure laws, which exist in every State and Territory in Australia. For example, section 5 of the Summary Offences Act 1988 (NSW) outlines the offence of obscene exposure, carrying the maximum penalty of 6 months imprisonment.

However, offences dealing with obscene or indecent exposure throughout Australia, are restricted to exposure which occurs in a public place and does not encompass the sending of unsolicited nude or sexual images via digital means.

An exception exists under section 48 of the Victorian Crimes Act 1958 which outlines the offence of “sexual activity directed at another person”. This offence applies if a person engages in sexual activity in a manner that another person is likely to see without their consent, with intent or knowledge that such activity will cause fear of distress to that person.  The offence carries a maximum penalty of 5 years imprisonment and applies whether conducted in person or via the internet.

 

Can Sexual Act Offences Constitute Cyber Flashing?

New South Wales prescribes a maximum penalty of 18 months’ imprisonment and/or $5,500 fine for committing a sexual act (section 61KE Crimes Act 1900 (NSW)).

If the victim of a sexual act offence is a child aged between 10 to 15 years of age, the maximum penalty is 2 years imprisonment (section 66DD Crimes Act 1900 (NSW)).

The maximum penalty is 7 years imprisonment if the victim of a sexual act offence is 10 years or less (section 66DC Crimes Act 1900 (NSW)).

The offence of sexual act is committed if the police can prove that the accused person intended to commit the act towards or with the victim, in addition to there being an absence of consent where the accused person knew that there was no consent and a reasonable person would regard the act as sexual.

In determining as to whether or not a reasonable person would regard the act as sexual, the circumstances of the act, aspects of it that would cause it to be sexual, whether it was for sexual gratification or arousal, and the body parts involved are all considered.

Click here for more on the age of consent laws in Australia.

 

Federal Offence of Using a Carriage Service to Menace, Harass or Cause Offence

Cyber-flashing may also be encompassed by section 474.17 of the Federal Criminal Code Act 1995 (Cth), which outlines the offence of using a carriage service (such as the internet) to ‘menace, harass or cause offence’. This offence carries a maximum penalty of 3 years imprisonment.

The offence applies if a “reasonable person” would regard the conduct as “menacing, harassing or offensive” and would likely include the unsolicited sending of nude or sexual images.

 

Cyber-Stalking Offences Across Australia

Although unlikely to be covered by obscene or indecent exposure laws, the sending of unsolicited nude or sexual images could constitute the offence of stalking or intimidation in every State and Territory in Australia.

In New South Wales, section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) outlines the offence of stalking or intimidation with the intent to instil fear of physical or mental harm. Stalking is defined under section 8 of the Act as including:

  • the following of a person about;
  • the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity; or
  • contacting or otherwise approaching a person using the internet or any other technologically assisted means.

If a person has stalked another, the prosecution does not need to prove that the victim actually feared harm, only that the harm was intended. The maximum penalty for this offence is 5 years imprisonment or 50 penalty units, or both.

Similar offences exist throughout all other jurisdictions in Australia. These include following:

  • In Victoria, section 21A of the Crimes Act 1958 (Vic) outlines the offence of stalking. This offence carries a maximum penalty of 10 years imprisonment.
  • In the ACT, section 35 of the Crimes Act 1900 (ACT) outlines the offence of stalking with intent to cause fear, harm or harassment. This offence carries a maximum penalty of 5 years imprisonment for a general offence, and 7 years imprisonment for an aggravated offence.
  • In Queensland, section 359B of the Criminal Code 1899 (Qld) outlines the offence of unlawful stalking, intimidation, harassment, or abuse an offense. This offence carries a maximum penalty of 5 years imprisonment for a general offence, and 7 years imprisonment for an aggravated offence.
  • In Tasmania, section 192 of the Criminal Code 1924 (Tas) outlines the offence of stalking and bullying. The maximum penalty for this offence is 21 years imprisonment.
  • In the Northern Territory, section 189 of the Criminal Code Act 1997 (NT) outlines the offence of stalking. This offence carries a maximum penalty of 2 years imprisonment for a general offence, and 5 years imprisonment for an aggravated offence.
  • In South Australia, section 19AA of the Criminal Law Consolidation Act 1935 (SA) outlines the offence of unlawful stalking. This offence carries a maximum penalty of 2 years imprisonment for a general offence, and 5 years imprisonment for an aggravated offence.
  • In Western Australia, section 338E of the Criminal Code 1913 (WA) outlines the offence of stalking. This offence carries a maximum penalty of 3 years imprisonment for a general offence, and 8 years imprisonment for an aggravated offence.

Generally, stalking will not cover a one-off instance of cyber-flashing and would require a pattern of behaviour to instil fear of physical or mental harm on another.

 

Is a Discrete Offence of Cyber-Flashing Required?

Given the limits of existing criminal laws in Australia to encompass cyber-flashing, there are increasing calls to introduce a new discrete offence at a Federal level to encompass the practice.

Dr Suzanne Reich and Dr Lauren Humby at the University of Southern Queensland have argued that existing criminal laws are inadequate at dealing with acts of cyber-flashing and there is a need for immediate reform.

“Arguably, cyber-flashing is a sexually violent behaviour. However, until this behaviour is criminalised it remains legally permissible, leaving victims with little recourse for formal responses” noted Dr Reich at a seminar in 2023.

A specific offence that addresses cyber-flashing would therefore provide greater clarity in law and better protect individuals from this highly prevalent form of digital sexual harassment.

 

Consequences of a Cyber Flashing Conviction in Australia

What are the impacts of being convicted in Australia for a cyber flashing offence? There are in fact a number of potential consequences of being convicted of a sexual related offence in Australia, namely:

  1. If a court has sentenced you for a “registrable offence” (class 1 or class 2 offence), you will become a “registrable person” required to report your relevant personal information to the Commissioner of Police within a prescribed period each year. You will be required to also report any changes to your relevant personal information within stipulated time periods. The reporting period ranges from 8 years to life:
    • It will be 8 years of reporting if you have been found guilty of a single class 2 offence;
    • It will be 15 years of reporting if you have been found guilty of a single class 1 offence, or ever been found guilty of more than a single registrable offence;
    • It will be for life if you are a registrable person for a class 1 offence and you subsequently commit and are found guilty of another registrable offence, or you are a registrable person for a class 2 offence and you subsequently commit and are found guilty of a class 1 offence, or you are a registrable person for a class 2 offence and you subsequently commit and are found guilty of another class 2 offence and have ever been found guilty of 3 or more class 2 offences.

The commissioner of police establishes and maintains a child protection register which is to contain all registrable persons relevant personal information. Failing to comply with the reporting obligations without reasonable excuse attracts heavy criminal penalties of up to 5 years imprisonment and/or $55,000 fine (section 17 of the Child Protection (Offenders Registration) Act 2000 (NSW)).

A class 1 or class 2 offence include offences against children and is defined and outlined further in section 3 of the Child Protection (Offenders Registration) Act 2000 (NSW).

If you are guilty of an offence that is not a class 1 or class 2 offence (non-registrable offences), then even though you are not a registrable person by that reason, the court can still make an order requiring you to report as a registrable person if the court is satisfied that you pose a risk to the lives or sexual safety of one or more children or of children generally (sections 3D, 3E, or 3F of the Child Protection (Offenders Registration) Act 2000 (NSW)). However, the court cannot make a child protection registration order if 60 days since your sentence date has expired for a non-registrable offence.

  1. The Commissioner of Police can apply to the Local Court for an order prohibiting a registrable person from engaging in specified conduct for a period of not more than 5 years for adult registrable persons. The court may make this child protection prohibition order if satisfied that there is a reasonable cause to believe, having regard to the nature and pattern of conduct, you pose a risk to the lives or sexual safety of one or more children, or children generally, and the making of the order will reduce that risk (section 5 Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)). The conduct that can be prohibited include associating with or other contact with specified persons such as children; being in specified locations or kinds of locations such as schools; working in a certain industry or profession such as a school or education; or engaging in specified behaviour. Further to this, the court can also make a contact prohibition order prohibiting from you communicating or contacting any victim of the registrable offence who is specified in the order or any person who was a co-offender in relation to that registrable offence who is specified in the order. The court may make this contact prohibition order against you for up to 12 months if you are a registrable person where the court is satisfied that there are sufficient grounds for making the order (section 16C of the Child Protection (Offenders Registration) Act 2000 (NSW)).
  1. If the Children’s Guardian is satisfied that you pose a risk to the safety of children or if you become a ‘disqualified person’, your working with children check clearance will be cancelled under section 23 Child Protection (Working with Children) Act 2012 (NSW). Similarly, if you do not have a working with children clearance but wish to obtain one, you will not be eligible to attain this if you are considered a person who poses a risk to the safety of children. A ‘disqualified person’ is someone who have been convicted or has pending criminal proceedings for certain offences including sexual assaults, engaging in private act, sexual acts, sexual touching, or any offence involving children. It is important to understand that to be permitted to work in a job involving direct child contact or being in contact as the usual part of work (something that’s more than incidental to work), or a child-related role, you must attain a working with children check clearance from the Children’s Guardian. Failure to obtain this caried up to two years imprisonment and/or $11,000 fine.

By Jimmy Singh and Jarryd Bartle.

Published on 19/01/2025

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Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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