This much has always been clear: Married at First Sight (or MAFS) is a show that thrives on scandal and controversy. This time, it looks to involve revenge porn.

In case you missed it, MAFS bride Olivia Frazer claimed to have discovered a nude photo of fellow bride Domenica Calarco on her private OnlyFans account. She then shared the photo with several other cast members in an unethical attempt to make Calarco look bad. Frazer’s decision to share the nude images raises major questions about the role of revenge porn laws in New South Wales, where the television show is filmed.

What is the offence of ‘revenge porn’ or distribution of an intimate image without consent?

The distribution of sexually graphic photos or videos of people without their knowledge or consent is often referred to, and known, as revenge porn. However, it is a problematic phrase since it indicates the motivation and reason for distribution are solely about revenge, when in reality, perpetrators of image-based sexual assault may have a variety of motivations. Additionally, the term “pornography” indicates that the victim was somehow involved in the creation of the pornographic photos. However, many photos may not be pornographic at all, or may not fulfil pornographic aims and still fit into this offence. 

How do I know if I am guilty of this offence?

To be found guilty of this offence; wherein a person intentionally distributes an intimate image of another person, the prosecution must prove:

• The distribution of the image was not consensual, and
• The individual sharing the image knew the person did not consent to the distribution, or was reckless as to whether the person consented to the distribution
• A prosecution of a person under the age of 16 years is not to be commenced without the approval of the Director of Public Prosecutions

The maximum penalty for this offence is imprisonment for 3 years.

A person will not be found guilty if the prosecution is unable to prove each of the elements above. Click here (https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.91Q) to read more about the elements of this offence.

Remember that Australians are entitled to the presumption of innocence. You are not required to prove your innocence, but rather, the evidence put forward by the prosecution must satisfy beyond reasonable doubt your guilt of the crime at hand.

What does consent mean?

According to section 91O of the Crimes Act 1900 NSW (“the Act”), the definition of consent under this offence is when a “person consents to the recording of an intimate image if the person freely and voluntarily agrees to the recording of the intimate image”. There are other ways in which consent can be determined in this section of the Act, such as:

• A person consents to the distribution of an intimate image if the person freely and voluntarily agrees to the distribution of the intimate image.
• A person consents to the recording or distribution of an image on a particular occasion is not to be regarded as having consented to the recording or distribution of that image (or any other image) on a different occasion

Click here (https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.91O) to read more about which circumstances constitute consent.

Are there any exceptions?

Before deciding for yourself whether you think you fall into exceptions of this offence, it is recommended that a defendant contact an experienced criminal lawyer who can help you. If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

A person does not commit an offence against the offence of distribution of an intimate image without consent if:

• The conduct alleged to constitute this offence was done for a genuine medical or scientific purpose, or
• The conduct alleged to constitute the offence was done by a law enforcement officer for a genuine law enforcement purpose, or
• The conduct alleged to constitute the offence was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings, or
• 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 degree to which the accused person’s actions affect the privacy of the person depicted in the image,
  • the relationship between the accused person and the person depicted in the image.

The above information is intended as general information and is not intended to be relied on as legal advice.