‘Over-criminalization’: Australian legal scholars warn of the risks of rushing to enact new criminal offenses on ‘revenge porn’.
Associate Professor Tyrone Kirchengast and Professor Thomas Crofts from the Sydney Institute of Criminology in the University of Sydney Law School have analysed the criminalization of non-consensual distribution of intimate images in a new paper published in Criminal Law Journal.
Currently in New South Wales, ‘sexting’ – the sending, receiving, or forwarding sexually explicit material – between adults is lawful, but any images recorded and/or distributed must be done consensually.
As seen across many states and territories and internationally, NSW has responded to non-consensual recording and/or distribution – commonly referred to as ‘revenge porn’ – with new criminal offenses.
In NSW, these offenses are serious, and offenders risk a three-year maximum sentence.
Associate Professor Kirchengast said there was a need for new offenses to capture the most problematic of behaviours.
“For example, non-consensual recording and/or distribution is aggravated where it is done to threaten or coerce another person. This can occur in circumstances of family and domestic violence,” he said.
However, he said setting too low a threshold on revenge porn offenses risks overreach of the criminal law.
“The problem is that there has been a rush to enact new criminal offenses where civil and administrative remedies or public educative responses may be more appropriate, and which might provide the redress sought by victims – such as removal of the offending images,” Associate Professor Kirchengast said.
“The rush to enact criminal offenses is understandable because the law was lagging behind social and technological change, but new offenses, if not carefully designed, carry the danger of overreach and over-criminalization, and could lead to behaviors being subject to prosecution that may be innocent or not offensive.”
