Embargoed until 00:01 a.m. (AEDT) Tuesday 27 October 2020
The Sentencing Advisory Council today released the first study in Australia of how image-based sexual abuse* is sentenced.
The report provides the first insights into how Victoria’s five image-based sexual abuse offences are being sentenced, using data for the four years to 30 June 2019. Victoria became one of the first Australian jurisdictions to criminalise the actual or threatened distribution of intimate images in 2014. These two offences joined three pre-existing upskirting offences enacted in 2007.
The report finds that more than half of all image-based abuse cases (54%) relate to family violence. In one-quarter of image-based abuse cases, the offender was also found guilty of breaching a pre-existing family violence intervention order. Of the 10 offences most commonly sentenced alongside image-based abuse, nine were related to family violence.
Other key findings include the following:
- The number of sentenced cases involving an image-based abuse offence has increased substantially in Victoria, from 25 cases in 2014–15 to 91 cases in 2018–19.
- Most image-based abuse is not reported to police. Police recorded 2,055 image-based abuse offences in the four years to 2018–19 – at most, one for every 3,000 Victorians – yet studies show as many as one in four Australians have experienced image-based abuse.
- Image-based abuse is usually only reported and prosecuted when some other offending brings that behaviour to the attention of police. Three-quarters of image-based abuse cases involved at least one other offence.
- The most common sentencing outcomes for image-based abuse are community correction orders (27%), imprisonment (22%) and fines (19%). Image-based abuse cases that involve family violence are three times more likely to receive imprisonment (29%) than image-based abuse cases that don't involve family violence (10%).
- The offences of actual or threatened distribution of intimate images now account for 80% of all image-based abuse sentenced in Victoria. These offences were introduced in 2014 in response to a parliamentary inquiry into sexting but are now primarily used in family violence contexts.
- Image-based abuse cases in the Children’s Court are different – far fewer cases relate to family violence (20%), there are fewer offences per case, and cases receive less severe sentences than cases in adult courts.
Based on the Council’s findings and consultations, the report raises three main policy concerns:
- The sentences imposed for charges of image-based abuse in serious cases seem low compared to the available maximum penalties and the severe harm that image-based abuse can cause, especially when threats are used as a weapon of control and fear.
- Unlike in most Australian jurisdictions, in Victoria image-based abuse offences are all summary offences.** This limits police search powers, especially to access computer systems. Summary status can also give the impression that image-based abuse is not a serious form of offending.
- The extraordinarily low rate of image-based abuse offences reported to police suggests a need for greater community awareness of these offences. It is not reasonable to expect that all image-based abuse will be reported to police; however, the large gap between the known incidence of image-based abuse and its reporting to police indicates that often neither victim survivors nor perpetrators realise that this behaviour is criminal.
Quotes Attributable to Council Chair Professor Arie Freiberg
‘This report gives us the first real insights into how image-based abuse is sentenced in Victoria. The link to family violence in particular tells us that this is very serious behaviour, but sentencing outcomes don’t seem to reflect this seriousness.’
‘Image-based abuse occurs across a broad spectrum of behaviours – from impulsive, small-scale sharing of sexts between young people, through to serious ongoing coercive control, or as part of other serious sexual crime. A criminal-justice response to image-based abuse will not always be appropriate, especially when young people are involved. But at the same time, it’s important that the criminal justice system is able to respond appropriately to the most serious cases of this behaviour.’
‘Despite the severe harms this behaviour can cause, many Victorians – including victim survivors – don’t appear to see image-based abuse as a criminal matter. Community education is likely to be a useful part of any government response to this growing issue.’
*Image-based sexual abuse (or image-based abuse) refers to non-consensual creation, sharing and/or threats to share images or recordings of another person that are intimate or sexual or depict genitalia. This includes ‘upskirting’ and ‘revenge porn’.
**Summary offences are less serious than indictable offences. Generally, summary offences are heard in the Magistrates’ Court.
The full report, Sentencing Image-Based Sexual Abuse Offences in Victoria, and a two-page factsheet will be available on the Council’s website on the morning of Tuesday 27 October 2020.