According to recent media reports, there has been a rise of attempts as Australia at ‘sexual extortion', abbreviated to ‘sextortion', with social media sites being used to target and blackmail victims, many of whom are young men concerned about compromising images being distributed to friend, family, schoolmates and the wider community.
Here's a rundown of the laws related to engaging in such conduct.
What is ‘sextortion'?
According to the Australian eSafety Commissioner, sextortion is a form of blackmail whereby a person – the perpetrator – threatens to share images of video of private parts of another – the victim – unless the latter submits to demands, such as giving money or engaging in directed conduct.
Perpetrators often target people through dating sites, social media and gaming apps, pretending to be attractive persons looking for sexual activity.
The blackmailer then tricks their victim into sending nudes or sexual images or videos, or records intimate acts during a live chat without the person's consent .
Once they have obtained intimate content, perpetrators threaten to share the content with others unless their demands are met.
The Commissioner reports that there were more than 1,700 sextortion complaints made in the first half of 2023, more than double that received the previous year.
And according to the Australian Federal Police, 90% of victims of sextortion are young males, many under the age of 18 years.
The offence of blackmail
Sextortion is a form of blackmail, which is an offence under section 249K of the Crimes Act 1900 (NSW).
This offence applies when a person makes any unwarranted demand with menaces with the intention of:
- obtaining a gain or causing a loss, or
- influencing the exercise of a public duty.
‘Menaces' is defined by section 249M to include:
- an express or implied threat of any action detrimental or unpleasant to another person, and
- a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.
Section 249L notes that a demand with menaces is ‘unwarranted' unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menace is a proper means of reinforcing the demand.
This offence carries a maximum penalty of 10 years' imprisonment.
The maximum penalty increases to 14 years' imprisonment where the person threatens to commit a serious indictable offence, which is any offence that carries a maximum penalty of at least five years in prison.
The offence of utilising a carriage service to menace, harass or cause offence
As many sextortion attempts occur over the internet, there is also the potential of a charge of utilising a carriage service to menace, harass or cause offence under Section 474.17 of the Criminal Code Act 1995– which is a piece of legislation that applies across Australia.
“Harassing” is not defined in the Act.
However, acts deemed as “menaces” are defined under section 138.2 as including:
- A threat (whether express or implied) of conduct that is detrimental or unpleasant to another person;
- A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.
“Offensive” is not defined under the However, section 473.4 states that in determining whether material is offensive, reference is to be had to:
- the standards of morality, decency and propriety generally accepted by reasonable adults; and
- the literary, artistic or educational merit (if any) of the material; and
- the general character of the material (including whether it is of a medical, legal or scientific character).
The offence carries a maximum penalty of 3 years in imprisonment.
An aggravated version of the offence exists under section 474.17A if a person commits an offence under section 474.17 of the Act, and the offence involves the transmission, making available, publication, distribution, advertisement or promotion of private sexual material.
The phrase “private sexual material” refers to material that:
- Depicts a person who is, or appears to be, 18 years of age or older and who is 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; or
- 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.
This offence carries a maximum penalty of 6 years imprisonment.
The offence of ‘revenge porn'
If sextortion involves recording a person without their consent, the offence of recording an ‘intimate image' of another person without their consent under section 91P of the Crimes Act 1900 may apply.
An ‘intimate image' is defined as:
- An image of a person's private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
- An image that has been altered to appear to show a person's private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
A ‘private act' includes depictions of someone in a state of undress, using the toilet, showering, bathing, engaged in a sexual act or engaged in any other like activity.
This offence carries a maximum penalty of a fine of $11,000 and/or three years imprisonment.
Section 91Q of the Crimes Act 1900 (NSW) outlines a related offence for anyone who intentionally distributes an intimate image of another person without their consent, or being reckless to the fact that the other person did not consent.
To “distribute” includes
- Sending, supplying, exhibiting, transmitting or communicating to another person; or
- Making available for viewing or access by another person.
This offence carries a maximum penalty of a fine of $11,000 and/or three years imprisonment.
Offences related to explicit images of minors
Finally, as sextortion appears to commonly target young men there is also the potential that the crime encompasses an offence relating to the possession or distribution of child abuse material.
At a Federal level, the Criminal Code Act 1995 contains several offences prohibiting the production, distribution and accessing of material that sexualises children.
Under section 474.23 of the Code, it is a criminal offence to possess, control, produce, supply or obtain child abuse material either for personal use or use by another. This offence carries a maximum penalty of 15 years imprisonment.
At a State level, section 91H of the Crimes Act 1900 (NSW) makes it an offence to produce, disseminate or possess child abuse material. This offence carries a maximum penalty of 10 years imprisonment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.