Offensive Conduct in NSW

Image credit: Osugi

Sahar Adatia.

 

Ahh, social media influencers.

It seems there’s really little they won’t do for a few likes on Instagram.

Except for the fact that sometimes, the quest to pose to maximum effect on social media can monumentally backfire.

This was indeed the reality for a Turkish influencer who decided she would lewdly pose on a giant penis sculpture while visiting Amsterdam’s Sex Museum, only to end up in court over the matter.

Merve Taskin, who boasts 572,000 followers on Instagram, snapped the photos at the Sex Museum and neighbouring Red Light District in January 2020 while she was on a trip to the Dutch capital to celebrate her 22nd birthday.

The images depicted her hugging a massive penis statue, while another photo gave the impression that she was standing naked behind a door window, making her appear to be a sex worker.

Nevertheless, after posting the photos online last year, three months later, the influencer was arrested on “obscenity charges” in the north-western Turkish city of Canakkale where she resides after authorities deemed the snaps offensive.

The obscene images were then removed from her social media page.

 

Ms Taskin Faces Court Over Photos with Giant Penis

In December 2021, Ms Taskin, now aged 23, faced a local where she was initially sentenced to six months in prison.

However, her sentence was reduced to five months due to her good conduct, before eventually being suspended.

Under Turkish law, people who publish material that is considered “obscene” can face a prison sentence of up to three years if caught.

Following Ms Taskin’s court appearance, the influencer took to Instagram to address the matter, advocating “freedom of expression”.

“The prosecution office gave its opinion to our detriment,” Ms Taskin wrote on her page.

“Against the opinion, we stated that, in general, my posts are within the limits of freedom of expression, that there is no precedent in the world, and that this concrete situation does not mean that our investigation authority is conducting an investigation that will set an example to the world, but that it shows how far behind the world we are in terms of freedom of expression.”

She went on to add: “However, the court would not agree with us, so it sentenced me to 5 months in prison. Despite all this, the relatively good news is that hagb (postponement of the announcement of the provision) was applied in this judgment that was set against me.

“In the current situation, if I do not deliberately commit a crime within 5 years, the provision will be annulled with all its consequences.”

Meanwhile, Amsterdam’s Sex Museum director, Monique van Marle, told media she wrote to Ms Taskin to express her views on educating people about sex.

“Our museum is intended to educate people all around the world about the history of sex,” Ms van Marle said.

“We admire you for expressing yourself and posting such pictures.”

Offensive Conduct in NSW

Generally speaking, according to the law, a person’s conduct or language is deemed offensive where it wounds the feelings or arouses anger or disgust in the mind of a reasonable person, taking into consideration the context of all the surrounding circumstances of the present time.

Under NSW law, offensive conduct is specifically behaviour which upsets the feelings of, or brings about anger, disgust, resentment or outrage to, a reasonable person’s mind, which occurs within view of or hearing from, a public place or a school.

A reasonable person is understood as someone who is not “thin-skinned”.

The penalties for offensive conduct are reflected in section 4 of the Summary Offences Act 1988.

Section 4 makes clear that there is a maximum penalty in place of three months in jail, or a fine of $660, or both, for an offence, while a conviction results in a criminal record.

It should be noted that police also have the power to deal with cases of offensive conduct by issuing an on-the-spot fine, while conducting using offensive language is not considered offensive.

Additionally, in line with section 4, an adequate defence for an offensive conduct offence is if the defendant satisfies to the court that they had a reasonable excuse for conducting themselves in the manner they did.

In contrast, “obscene exposure” in NSW means any kind of behaviour in which a person exposes their genitalia in a public place or behaviour which is likely to offend the current standards of decency that a community presently upholds.

This conduct can comprise performing sexual acts in public, streaking at an event and even flashing.

While such acts may be carried out as a mere joke or stunt, by the standards of the courts and the community, they tend to still be considered “obscene exposure”.

In fact, the courts take obscene exposure quite seriously and this is reflected by the penalties.

If you are in NSW, section 5 of the Summary Offences Act 1988 which makes clear that you are prohibited to wilfully and obscenely expose yourself in or within view from a public place or school.

The consequences of an offending include a maximum penalty of six months in jail or a fine of $1,100, as per section 5.

It should be noted that the offence does not include accidental exposure that may have arisen from a wardrobe fail given this form of public display would be deemed unintentional.

Moreover, a person does not have to have witnessed the conduct for it to be regarded as obscene exposure.

Defences to this charge may include duress, necessity, or mental illness defence where the person was incapable of knowing the rightness of wrongness of their conduct.

Questions? Get some guidance from our criminal lawyers Sydney based team.

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