Sextortion and Sexual Blackmail

It has been revealed that more men than women are reporting intimate images and videos being used against them online, in the form of ‘sextortion’ scams.

‘Sextortion’ describes a form of blackmail in which offenders threaten to post or distribute intimate images of the person targeted unless demands are met, which typically involve money.

It will normally involve the use of fake accounts which engage with victims, and often attempt to develop relationships with them.

The offender will then request naked pictures from the targeted person, and once received, threaten to send it to the person’s friends and family if they are not paid.

The apps utilised are often dating apps such as Tinder, or on social media sites such as Instagram, TikTok, and Facebook.

The E-Safety Commission has reported a 55% rise in image-based abuse in the last financial year, with male victims making up almost 60% of more than 4,000 reports to the commission.

Whilst a majority (40%) of victims were aged between 18 and 24, more than a quarter were younger than 18.

More than half of image-based abuse reports now involve sextortion.

Experts have attributed the growth of sextortion offences to the pandemic, with people more reliant on digital intimacy tools, and vulnerable to scams whilst alone.

Whilst a majority of those subject to ‘sextortion’ are men, those who continue to fall victim to ‘revenge porn’ are female.

Revenge porn typically involves some form of relationship retribution, in which an ex-partner or related person distributes intimate images and/or videos of a victim or threatens to do so.

Most of material posted, was done so on exposé or pornography sites, and hosted overseas, however, the commission was successful in having 88% of this material removed.

If the commission is not successful in having it removed, it seeks to limit the content’s discoverability, typically by having links to it removed from search engine results.

It also alerted social media services to over 3,500 accounts used to elicit, share, or threaten to share intimate content, which resulted in the deletion of the accounts, in 75% of cases.

In NSW, Division 15C of the Crimes Act 1900 (NSW) regulates the recording and distribution of intimate images and covers sextortion type offences. These types of revenge porn laws prescribe heavy punishments.

It is an offence to threaten to record or distribute an intimate image of another person without their consent and intending to cause that other person to fear that the threat will be carried out.

The threat involved may also be made by any conduct and may be explicit or implicit and unconditional or conditional, including via requesting money. Australia’s threatening laws have developed in efforts to keep up with technology.

Types of Sextortion Extortion and Sexual Blackmail Offences in Australia

The main legislative framework to protect victims of sextortion and blackmail in the sexual context is the Crimes Act 1900 (NSW), namely sections 91P, 91Q and 91R. At the federal or commonwealth level applicable all over Australia regardless of the State or Territory the legislative framework is mainly sections 474.17 and 474.17A Criminal Code Act.

These are offences carrying heavy maximum penalties and is discussed in more detail below.

Sexual Blackmail | Threaten to Distribute or Record Intimate Image

A person who threatens to distribute or record an intimate image of another person without the other person’s consent, intending to cause that person to fear that the threat will be carried out will face up to 3 years imprisonment in New South Wales, prescribed by section 91R of the Crime Act 1900. This offence also carries up to a fine of $11,000 in addition to, or as an alternative to the imprisonment sentence.

A person who commits this offence even if the image does not exist will still be liable to the same punishment.

A threat to sextortion of this nature can be made either by words or conduct and may be explicit and conditional or unconditional.

When proving this offence, the police do not have to prove that the person alleged to have been threatened actually feared that the threat would be carried out.

Distributing Intimate Image Without Consent For Sextortion in NSW

Intentionally distributing an intimate image of another person without the consent of the person is a crime in New South Wales carrying up to 3 years imprisonment and/or $11,000 fine, prescribed by section 91Q.

This offence occurs if a person intentionally distributes an intimate image of another person without the consent of the person, while knowing the person did not consent to the distribution or being reckless as to whether the person consented to the distribution.

Recording Intimate Image Without Consent for Sextortion in NSW

A person who intentionally records an intimate image of another person without the consent of the person, knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording if a crime carrying up to 3 years imprisonment and/or up to a fine of $11,000 in New South Wales. This is prescribed in section 91P.

Defences to Sextortion

A person accused of sextorting under section 91P or 91Q will have a defence and will be ‘not guilty’ if section 91T applies.

Exceptions include where the conduct alleged to constitute the offence:

• was done for a genuine medical or scientific purpose,
• was done by a law enforcement officer for a genuine law enforcement purpose,
• was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings.

Further exceptions include where a reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following:

• the nature and content of the image,
• the circumstances in which the image was recorded or distributed,
• the age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image,
• the degree to which the accused person’s actions affect the privacy of the person depicted in the image, and
• the relationship between the accused person and the person depicted in the image.

Definition of ‘Intimate Image’

The Act defines an ‘intimate image’ as an image of a person’s private parts, or of a person engaged in a private act, in circumstances where a reasonable person would reasonably expect to privacy.

It also includes images altered to appear to show this.

Definition of Consent to Distribute an Intimate Image

A person consents to the distribution of an intimate image if the person freely and voluntarily agrees to the distribution of the intimate image.

It is emphasised that even if a person distributes an image of themselves, it is not by reason only of this fact, to be regarded as them having consented to any other distribution of the image.

Can the Intimate Image Be Removed or Deleted by a Court Order?

If found guilty, a court may order that the offender take reasonable actions to remove, retract, recover, delete, or destroy any intimate image recorded or distributed by the person, within a period specified by the court.

If they fail to do so without reasonable excuse, a maximum penalty of 2 years imprisonment and/or a $550 fine is applicable, pursuant to section 91S(2).

Image-based abuse via electronic means, is also criminalised under Commonwealth legislation.

Commonwealth Federal Offence of Using Carriage Service for Sextortion

Under Australia’s federal law of section 474.17A(1) of the Criminal Code Act 1995 (Cth), it is a crime carrying up to 6 years imprisonment for a person to use a carriage service such as Wifi or internet or a telecommunications service in a way that reasonable persons would regard as being in all the circumstances offensive, harassing or menacing and it involves transmitting, making available, publishing, distributing, advertising or promoting private sexual material.

This is also commonly called using carriage service to send nudes or sexting for federal offences.

A carriage service includes communicating via text, phone call, social media, or email.

“Private sexual material” here means material that depicts a person who is, or appears to be, 18 years of age or older and who’s 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.

This can also include 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.

If the section 474.17A offence is not proven due to the prosecution being unable to prove that the accused person transmitted, made available, published, distributed, advertised or promoted private sexual material, then he or she may still be found guilty of the section 474.17 offence of using a carriage service in a way that reasonable persons would regard as being in all the circumstances menacing, harassing or offensive. This offence does not require proof that private sexual material was transmitted etc, thus making it easier to prove.

Here is more on the law on the definition of offensive.

By Poppy Morandin and Jimmy Singh.

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