ACSVAW Submission on Security Bureau Consultation Paper 'Proposed Introduction of Offences of Voyeurism, Intimate Prying, Non-consensual Photography of Intimate Parts, and Related Offences'
In the response paper regarding the consultation on Security Bureau's Consultation Paper 'Proposed Introduction of Offences of Voyeurism, Intimate Prying, Non-consensual Photography of Intimate Parts, and Related Offences' (the Consultation Paper) , we argue that the proof of sexual purpose shall not be the element for the constitution of the proposed offences put forward by Security Bureau, for the following rationales. First, the motive or purpose of perpetrator is irrelevant; the issue is always, and should always be, whether the complainant's sexual autonomy has been violated. Second, to create two disparate classes of offences, merely by the distinction of sexual gratification, will lead to a foreseeable moot point in trial— is the defendant's conduct for satisfying their own subjective sexual desire or something else— which is meaningless. Third, proof of sexual gratification is not required in existing sexual offences. Fourth, it will pose an evidential hurdle in proving sexual gratification and besides, sexual gratification is also hard to define. Fifth, we notice there is a lack of convincing justification for the sexual gratification element in overseas equivalents and straight following without strong rationales is not recommended.
In addition to the offences put forward in the Consultation Paper, we propose to introduce a new offence on 'threatening to distribute intimate images' by recommending two alternative models for legislation. First, to extend the proposed scope of acts of the offence of non-consensual distribution of intimate images by including the act of threatening to distribute intimate images, referencing section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. Second, to create a standalone offence against threatening to distribute intimate images, referencing Section 208AC of Criminal Code Act 1983 of Northern Territory, Australia.
Regarding the harms brought by the image itself to the victims, we are of the opinion that the Court should be able to order an individual to remove the relevant images and, the Court should also have the power to order the online content host to take down or disable the images. Last but not the least, the Court should be granted the jurisdiction to make interim orders, referencing section 18 of the Harmful Digital Communications Act 2015of New Zealand. We hope the Government will adopt our views and carry out the legal reforms as soon as possible.