Sexual Blackmail In Australia
Sexual blackmail is a form of manipulation and coercion where someone threatens to disclose sexual information or images about another person unless they comply with certain demands. Sextortion is a specific type of sexual blackmail where the threat involves the distribution of sexually explicit material, usually images or videos. These forms of harassment can have serious consequences, including mental distress, reputation damage, and even suicide.
In Australia, sexual blackmail and sextortion are illegal, and individuals can face severe penalties.
What is Sexual Blackmail?
Sexual blackmail, also known as sextortion, is a form of blackmail where someone threatens to expose sexual information or images of another person unless they comply with the blackmailer’s demands.
The demands may include performing sexual acts, providing more explicit images, or paying a sum of money. The blackmailer may use various means to coerce the victim, such as threatening to share the information or images with family, friends, or employers.
Even if the victim initially provided the material consensually, it is still illegal to use it for blackmail or sextortion. Consent can be withdrawn at any time, and the use of sexual material as a means of coercion is always illegal.
What is Sextortion?
Sextortion refers to a type of online blackmail where someone coerces another person into providing sexual images or performing sexual acts by threatening to distribute compromising or sexually explicit material of them.
In Australia, sextortion is a serious offense and is considered a form of cybercrime. It is punishable under the criminal law, and individuals found guilty of this offense may face severe penalties, including imprisonment and fines.
Sextortion typically involves the use of technology, such as social media, messaging apps, or email, to communicate with the victim. It often targets young people or individuals who are vulnerable or easily manipulated.
Is Sexual Blackmail Illegal?
Under Australian law, sexual blackmail and sextortion are considered forms of extortion, which is defined as the use of threats to obtain property or benefit. Section 346 of the Criminal Code Act 1995 (Cth) states that anyone who makes a threat with the intention of obtaining a benefit or causing a loss can be found guilty of extortion. This includes threats to reveal sexual information or images.
In addition, the primary legal structure aimed at safeguarding victims of sexual blackmail and sextortion is the Crimes Act 1900 (NSW), specifically comprising sections 91P, 91Q, and 91R. In Australia, irrespective of the State or Territory, the federal or commonwealth level legislative framework chiefly encompasses sections 474.17 and 474.17A of the Criminal Code Act.
The federal law as stated in section 474.17A(1) of the Criminal Code Act 1995 (Cth) makes it a criminal offense punishable by up to six years of imprisonment for an individual to utilize a carriage service, such as the internet, Wi-Fi, or a telecommunications service, in a manner deemed offensive, harassing, or menacing by reasonable individuals.
This offence applies when the individual transmits, publishes, makes available, distributes, advertises, or promotes private sexual material. This act is commonly known as “sexting” or “using carriage service to send nudes” under federal law. A carriage service includes communication via text, phone calls, email, or social media.
Private sexual material refers to any depiction of a person, who appears to be or is 18 years of age or older, engaged in sexual activity or pose, either alone or with others, in circumstances where a reasonable expectation of privacy exists. It may also include material featuring the sexual organs, anal region, or female breasts of a person 18 years of age or older, in circumstances deemed private by reasonable persons.
If the prosecution fails to prove that the accused person transmitted, made available, published, distributed, advertised, or promoted private sexual material in a section 474.17A case, the accused may still be found guilty of the section 474.17 offense of using a carriage service in an offensive, menacing, or harassing way. This offence does not require proof of private sexual material transmission or dissemination, making it relatively easier to establish.
What are the Defences to Sexual Blackmail or Sextortion Charge?
Under sections 91P or 91Q of the Crimes Act, an individual charged with sexual extortion can claim a defence and be acquitted of the offence if section 91T is applicable.
There are certain exceptions to this defence, such as when the alleged act was performed for genuine medical or scientific reasons, or by a law enforcement official for lawful enforcement purposes, or when it was required by a court or deemed necessary for legal proceedings.
Additionally, there are further exceptions where the conduct of the accused person could be considered acceptable by a reasonable person, based on factors such as the nature and content of the image, the circumstances of its recording or distribution, the age, intellectual capacity, vulnerability, or other relevant circumstances of the person depicted in the image, the level of invasion of privacy caused by the accused person’s actions, and the relationship between the accused person and the person depicted in the image.
What are the Penalties for Sexual Blackmail or Sextortion?
The penalties for sexual blackmail and sextortion in Australia depend on the severity of the offence. If the person threatened to release non-explicit sexual information, they could face up to ten years in prison. However, if the threat involved sexually explicit material, the maximum penalty is 15 years in prison. If the victim is under 16 years old, the person could face up to 25 years in prison. Should the offender be convicted, the court may direct them to undertake reasonable steps, within a specified time frame, to remove, retract, recover, delete, or destroy any intimate image they have captured or shared. Failure to comply without a valid excuse could result in a maximum penalty of 2 years’ imprisonment and/or a fine of up to $550, as outlined in section 91S(2). Additionally, the use of electronic media to perpetrate image-based abuse is also prohibited under Commonwealth laws.
In addition to criminal penalties, victims of sexual blackmail and sextortion can also pursue civil remedies, such as injunctions or damages for defamation or breach of privacy. These remedies can provide additional support and compensation for victims who have suffered harm as a result of these offences.
What are the ways to Obtain a Lesser Penalty if Accused of Sexual Blackmail?
When determining the sentence for a person charged with sexual blackmail, a Court will take various factors into account. Some factors that may lead to a lesser sentence are:
- A persons criminal history;
- Positive character references;
- The prospect of rehabilitation; and
- Whether the person shows genuine remorse.
If you have been charged with a sexual blackmail or sextortion offence, you should speak to a sexual assault lawyer in Sydney. If you intend to defend such charges, our team of criminal defence lawyers can assist you in preparing for a jury trial.
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