Currently in NSW, the sending and receiving of sexually explicit adults – often referred to as “sexting” – is lawful, but any images recorded must be consensual. As seen in many states and internationally, there has been a legal response to all non-consensual recording, commonly referred to as “revenge porn”.

In NSW, the offences carry a three-year maximum sentence. The University of Sydney associate professor Tyrone Kirchengast and professor Thomas Crofts have analysed the criminalisation of non-consensual distribution of intimate images.

“Non-consensual recording and distribution [are] aggravated where it is done to threaten or coerce another person. This can occur in circumstances of family violence,” noted associate professor Kirchengast, but said there is a danger of too low a threshold.

Associate professor Kirchengast said the problem is that there has been a “rush” for the new criminal offences where civil and administrative remedies or public educative responses may be more appropriate and “might provide redress sought by victims”.

“The rush to enact criminal offences is understandable because the law was lagging behind social and technological change, but new offences, if not carefully designed, carry the danger of overreach and overcriminalisation, and could lead to behaviours being subject to prosecution that may be innocent or not offensive,” he said.

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