The Crimes Amendment (Intimate Images) Bill 2017 makes it an offence to, first, record an intimate image without consent; secondly, distribute such an image without the express consent of the person recorded; and, thirdly, threaten to record or distribute an intimate image without consent. The bill also makes a move towards nuancing those offences when young persons are involved. It also moves to criminalise refusals by perpetrators to remove, retract, recover, delete or destroy intimate images. I would argue, however, that the legislation fails to adequately address the take-down remedies recommended by the parliamentary inquiry that informs it.
I have spoken a number of times in this place on issues related to sexual consent. Many women have spoken to me about rape, domestic violence, sexual assault on university and TAFE campuses, the rise of men's groups that promote violence against women and so-called stealthing. What is encouraging is the growing momentum towards eliminating what can broadly be defined as a "rape culture", a passive acceptance of behaviour that trivialises or humiliates women and which finds its extreme expression in rape, sexual assault or abuse, and with that, there is a growing awareness that government must catch up to the challenges posed by our rapidly evolving technology if we are to protect victims of rape and sexual assault. As social media has evolved, along with a host of new apps that assist us to stay connected, so too have the ways technology can be co-opted to harass or do harm to others. Along with my colleagues, I support this bill because it goes much of the way towards addressing the issue of image abuse —or revenge porn—and provides a strong foundation for further protections that we may require in the future.
Earlier this month, Dr Nicola Henry from RMIT University in Melbourne released the first major study into the prevalence and impacts of revenge porn in Australia. A survey of 4,200 respondents revealed that one in five Australians had been a victim of image-based abuse. While men and women are equally likely to be victims, vulnerable communities are more likely to be impacted—half of Indigenous respondents had been victims, and half of people with disability also reported being victims of image-based abuse.]; Members of the LGBTIQ community and younger Australians were also over-represented. Twenty per cent of all survey respondents reported having nude or explicit images taken without consent; 11 per cent reported having those images distributed; and 9 per cent reported being threatened with having images taken or distributed. When releasing the data, Dr Henry noted that:
This isn't just about " revenge porn " —images are being used to control, abuse and humiliate people i n ways that go well beyond the " re lationship gone sour" sce nario.
I believe the best way to understand the impacts of this kind of behaviour is to listen to those who have experienced it. In a recent news article, one victim explained the process how she discovered that intimate images of her had been shared. She said:
I arrived at the party to a group of men sneering about the fact they'd seen me naked. I believed it was just their boys-will-be-boys mentality and they were trying to irritate me for their own amusement, so ignored the taunts.
But later that night w hen I was at the pub in the small New South Wales town where I grew up, the bartender sidled over to me to let me know my vagina was his computer desktop background.
That's when I discovered I was the victim of revenge porn.
She goes on to explain that:
In the weeks after the photos had leaked, I did not eat, I did not talk, and I wished I would be swallowed up by my bed sheets . I did not stop crying, I was ashamed, humiliated, alone and just wanted to die. I had no confidence left, I felt disgusting.
Eve n now, seven years later, I feel sick to my stomach when I think of what people sa w or what they still might see.
Another report notes that 80 per cent of those who experienced threats to distribute an image reported extreme levels of psychological distress. Thirty-two per cent of affected women expressed a deep fear and anxiety that the image would be shared or spread further. Interestingly, 23 per cent of men reported that they felt intimidated, afraid or in danger as a result of image-based abuse and I think this also reveals something about the gendered nature of these offences: The fact is that women live in a hyper-sexualised culture where they are continually subjected to depictions of women designed often to degrade or humiliate us. Each and every day, women see the judgement and ridicule of our bodies. We experience the sense of ownership that men seek to exercise over our bodies and our rights.
The RMIT University report notes that women are more likely than men to be the victim of image‑based abuse from an intimate partner or ex-partner. The violence and intent behind intimate image abuse is very familiar to us. It is about control. Sharing intimate images is being used by partners and ex-partners as a form of domestic or family violence. This bill is correct in making it an offence to record, distribute or threaten to record or distribute intimate images without consent. It mandates that these offences carry a maximum penalty of 100 penalty units or imprisonment for three years, or both This is a powerful signal from government that this behaviour will not be tolerated and that the fundamental issue of consent extends to both our digital life and the digital footprint that we leave behind.
We must also address the culture that drives image-based abuse, particularly the gendered violence that it represents. What we know is that the change cannot happen only from the top; it cannot just be a signal and legislation from the Government. This brings me to what I see as the key failing of the bill: the rectification regime it sets out. The bill allows for a court to order a person to revoke, retract, recover, delete or destroy an intimate image. Failure to do so is punishable by 50 penalty units, two years in jail, or both. However, the only way orders can be given to remove an image is for someone to be convicted of one of the new offences outlined in the bill. This ignores the basic fact of how the internet works. In the time it takes to secure a conviction—possibly years—the image can, and, let us be honest, will be shared thousands or millions of times, making the impacts on the victims significantly worse.
Secondly, the bill puts the onus of removing the image on victims. In order for an image to be removed, the victim must establish the guilt of those who have recorded or are sharing the image. It is unclear how this will be enforced in the instance of those found guilty of distributing the image, particularly those who share the image on from other sources. The victim of intimate image sharing must also know that it exists in the first place, which is not always the case. The bill fails to address any culpability or duty by carriage services, including social media sites, to act. That requires further and serious consideration. Importantly, the bill ignores recommendations in the report of the Legislative Committee Standing Committee on Law and Justice for a separate rectification scheme where take-down orders can be issued and civil law remedies put in train to protect victims. This approach would be far more likely to result in positive and more timely outcomes for the victims of image abuse.
Particularly where young people are concerned, providing a path for civil remedies can also assist in driving education, respect and cultural change around issues of consent. While the bill nuances that young people may be prosecuted, I argue that we need to do much more to address the underlying culture that particularly puts women and girls at risk. In line with other legislation, a person under the age of 16 will not be deemed able to give consent to the recording and distribution of intimate images. The bill ensures that a person under 16 years of age cannot be prosecuted without the consent of the Director of Public Prosecutions. In practice, this will require considerable consultation with teachers and educators, who are often left to manage the very complex impacts of image sharing on students, as well as the complex legal procedures this behaviour sets in train. [Extension of time]
Currently, a teacher who learns that an intimate image of a student is being shared must report it to the police. This can result in significant consequences for young people, including being listed on the sex offender registry. While I do not reject the need for the law to be involved in such a case, we need comprehensive education for our young people around the risks of sharing intimate images. The Respectful Relationships program has been devised and is being rolled out in high schools across New South Wales. It is designed to teach young people about domestic violence. As our children are exposed to sexualised images earlier and earlier, we must and should start these conversations earlier—I believe in primary schools.
These are the kinds of programs that can help drive the cultural change that these laws seek to bring about. Fundamentally, this is an issue about consent. We must be firm in driving the kind of cultural change that promotes active consent and respect. That is the only way we can address the rising instances of sexual assault and harassment in our homes, schools, workplaces and also in our digital lives. It will take education, support for victims and a mix of responses that includes civil redress and firm legal consequences, such as this bill will enact. I strongly commend the bill to the House.