The Offence of Sextortion in Western Australia

Rates of ‘sextortion’ or ‘sexual extortion’ are on the rise in Western Australia with many people, particularly young men, being impacted.

The following outlines the crime of sextortion and the potential criminal offences that could apply to this behaviour.

What is ‘sextortion’?

“Sextortion” involves a person – often children – being coerced into sending sexualised images of themselves to online offenders, who then blackmail them and tell them to send money, with the threat that the photos will be distributed publicly. It is, essentially, a variant of blackmail.

According to media reports, 90 per cent of the victims of sextortion in Western Australia are boys aged between 15 and 17 years old.

The standard scenario is a young man being contacted on social media by a (fake) attractive person around their age and gradually led through conversation to send compromising photos and videos. Once intimate images are obtained, the blackmailer will then reveal the scam and ask for money so as not to distribute the images.

Below are a number of offences that could be encompassed by the act of sextortion.

The Offence Of Non-Consensual Distribution Of Intimate Images

If a blackmailer were to share intimate images of a victim as part of a sextortion scheme, this would likely amount to an offence under section 221BD of the WA Criminal Code of non-consensual distribution of ‘intimate images’. This offence applies where a person:

• distributes an intimate image of another person (the depicted person); and
• the depicted person does not consent to the distribution.
  

This offence carries a maximum penalty of 3 years imprisonment if the prosecution proceeds in the District court or imprisonment for 18 months and a fine of $18,000 if prosecuted in the Magistrates Court.  

The court may also make an order that the person who distributed the images take certain actions to limit or stop its distribution (such as taking down a web page).

An ‘intimate image’ of a person means a still or moving image, in any form, that shows, in circumstances in which the person would reasonably expect to be afforded privacy:

• the person’s genital area or anal area, whether bare or covered by underwear; or
  
• in the case of a female person, or transgender or intersex person identifying as female, the breasts of the person, whether bare or covered by underwear; or
  
• engaged in a private act, such as being in a state of undress, using the toilet, showering or bathing; or engaged in a sexual act.

The definition includes images that have been altered to appear to depict a person in an intimate act (such as a ‘deep fake’).

A person will only be said to have consented to the distribution of an intimate image if consent was ‘freely and voluntarily given’. That is, consent must not have been obtained by force, threat, intimidation, deceit or any fraudulent means.

Consent to distribute an intimate image in one circumstance, or to one person, does not mean consent to distribute in future circumstances or to other people.

Finally, a person under the age of 16 years of age is incapable of consenting to the distribution of an intimate image.

The Offence of Threats With Intent To Gain

The act of ‘sextortion’ could also form part of committing the offence of making threats with intent to either gain a benefit or cause a detriment under section 338A of the Criminal Code. This offence applies where a person makes a threat with intent to:

• gain a benefit, pecuniary or otherwise, for any person; or
• cause a detriment, pecuniary or otherwise, to any person; or
• prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
• compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.

The definition of ‘threat’ under the Code includes a threat to distribute an intimate image.

The maximum penalty for this offence is 10 years imprisonment if circumstances of aggravation apply, and 7 years imprisonment in all other circumstances.

Circumstances of aggravation include where:

• the offender is in a family relationship with the victim of the offence; or
• a child was present when the offence was committed; or
• the conduct of the offender in committing the offence constituted a breach of an order; or
• the victim is of or over the age of 60 years.

The Federal Offence of Using A Carriage Service To Menace, Harass or Cause Offence

Sextortion could amount to a number of criminal offences at a Federal level.

Section 474.17 of the Federal Criminal Code, which applies across Australia, outlines the offence of using a carriage service (such as the internet) to menace, harass or cause offence.

This offence carries a maximum penalty of 3 years imprisonment.

An aggravated version of the offence exists under section 474.17A  of the Code if a person commits the offence above, and the offence involves the transmission, making available, publication, distribution, advertisement or promotion of private sexual material.

This aggravated offence carries a maximum penalty of 6 years imprisonment.

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.
  

Offences Related to Child Exploitation Material

Finally, as it is not uncommon for victims of sextortion to be under the age of 18, there is potential for this behaviour to amount to an offence related to child exploitation material.

There are two key child exploitation offences under the Western Australian Code that could apply, including:

• Distributing child exploitation material under section 219 of the Code, which carries a maximum penalty of 10 years imprisonment; and
  
• Possessing child exploitation material under section 220 of the Code carries a maximum penalty of 7 years imprisonment.

They also two key offences under the Federal Criminal Code including:

• Using a carriage service for child abuse material under section 474.22 of the Code, which carries a maximum penalty of 15 years imprisonment; and
  
• Possessing or controlling child abuse material obtained or accessed using a carriage service under section 474.22A of the Code, which also carries a maximum penalty of 15 years imprisonment.

For State offences, a child is a person under the age of 16 years old. For commonwealth offences, a child is a person under the age of 18 years old.

Need Legal Advice?

Andrew Williams is an experienced Criminal Lawyer and Barrister in WA  who can provide you with expert legal advice in relation to offences against a child.

Andrew offers a range of criminal law and traffic law services in Perth, Fremantle and all across Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.