Content warning: The following article on voyeurism and related offences contains content that is not appropriate for children to read. We only intend to inform our readers about such offences and the importance of seeking legal action against it.
This article will outline provisions for voyeurism and related offences. Voyeurism is the act of observing or recording a person without their consent. This can include activities such as peeping through windows, using hidden cameras, or recording someone in a private space such as a bathroom or changing room.
Voyeurism is a violation of privacy and can have serious consequences under the law. Voyeurism offences fall within the broader realm of criminal law, specifically under offences against the person. These offences highlight the importance of protecting individual privacy and preventing the misuse of technology for exploitative purposes.
The Crimes Act 1900 (NSW) provides a legal framework to address these offences and ensure that the justice system holds perpetrators accountable for their actions. Read on to learn more about voyeurism and related offences.
Section 91I: Definitions
Section 91I defines several terms and concepts related to provisions about voyeurism and related offences. We set out these definitions below:
The broad definition of “building” includes not only physical structures but also vehicles, vessels, tents, or temporary structures. This means that the concept of a “building” need not necessarily mean only traditional buildings.
We outline the definition of “private parts” below:
- It includes a person’s genital area or anal area, whether they are exposed or covered by underwear.
- It includes the breasts of a female person or a transgender or intersex person identifying as female, regardless of whether the breasts are sexually developed.
“Engaged in a private act” under this Division means:
- They are in a state of undress.
- They are using the toilet, showering, bathing, engaged in a sexual act that is not typically done in public, or involved in any similar activity.
- The circumstances are such that a reasonable person would expect to have privacy during these activities.
“Films” under this Division means to record or transmit one or more images, whether still or moving, of the other person or their private parts. The purpose of this filming is to enable either the person doing the filming or a third person to observe these images. This is the case either during the filming itself or at a later time.
Section 91J: Voyeurism
Section 91J defines voyeurism and related offences. The section sets out the following:
General Offence
A person is guilty of voyeurism if, for the purpose of obtaining sexual arousal or gratification, they observe someone who is engaged in a private act. They must have also done this without the person’s consent to be found guilty of voyeurism. The observer must also know that the person being observed does not consent to being observed for this purpose.
The maximum penalty for this offence is 100 penalty units or imprisonment for 2 years, or both. This offence is considered a summary offence.
Aggravated Offence
An aggravated offence occurs when a person, for the purpose of sexual arousal or gratification, observes someone engaged in a private act without consent and with knowledge of the lack of consent, but in circumstances of aggravation.
Section 91J of provisions about voyeurism and related offences state that the maximum penalty for aggravated offences is 5-year imprisonment.
“Circumstances of Aggravation”
“Circumstances of aggravation” are defined as situations in which:
- The person observed was a child under the age of 16 years, or
- The offender constructed or adapted the building’s fabric for the purpose of facilitating the commission of the offence
Alternative Verdict
If, during the trial of a person charged with an aggravated offence (subsection 3), the trier of fact is not convinced that the aggravated offence is proven but believes the person committed an offence under subsection 1 (the general offence), the trier of fact may acquit the person of the aggravated offence and find them guilty of the general offence. The person will then be subject to punishment accordingly.
Attempts
This section also states that a person who attempts to commit an offence under subsection 1 or 3 is liable to the same penalty as if they had successfully committed the offence.
Section 91K: Filming a Person Engaged in Private Act
Section 91K of voyeurism and related offences provisions discuss the filming of a person engaged in a private act. There are two categories of this offence:
General Offence
A person who films another person engaged in a private act without their consent, knowing that the person does not consent, is guilty of an offence. The maximum penalty for this offence is 100 penalty units or imprisonment for 2 years, or both.
Aggravated Offence
A person who films another person engaged in a private act without their consent, knowing that the person does not consent, and in circumstances of aggravation, is guilty of an offence. The maximum penalty for this offence is imprisonment for 5 years.
Circumstances of Aggravation
- The person the offender is filming is a child under the age of 16 years.
- The offender modified a building to make it easier to film the person.
A person who attempts to commit an offence under 91K(1) or (3) is liable to the penalty provided for the commission of the offence. If a person faces a charge of an aggravated offence but the court does not believe that the offence is proven, the court may find the person guilty of the general offence instead.
Section 91L: Filming a Person’s Private Parts
Section 91L of voyeurism and related offences provisions makes it an offence to film another person’s private parts without their consent. The offence is also divided into two categories:
General offence
A person who films another person’s private parts without their consent is guilty of an offence. The offender must also know that the person does not consent, in circumstances where a reasonable person would expect that their private parts could not be filmed. The maximum penalty for this offence is 100 penalty units or imprisonment for 2 years, or both.
Aggravated offence
A person who films another person’s private parts without their consent, knowing that the person does not consent, in circumstances where a reasonable person would expect that their private parts could not be filmed, and in circumstances of aggravation, is guilty of an offence. The maximum penalty for this offence is imprisonment for 5 years.
Circumstances of aggravation
- The person that the offender is filming is a child under the age of 16 years.
- The offender modified a building to make it easier to film the person.
A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence. If a person is charged with an aggravated offence but the court does not believe that the offence is proven, the court may find the person guilty of the general offence instead.
A court cannot convict a person of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion.
Section 91M: Installing Device to Facilitate Observation or Filming
Section 91M of provisions for voyeurism and related offences addresses the installation of a device to facilitate observation or filming. It states the following:
Offence
A person is guilty of an offence under this section if they do the following for the purposes of filming or observation of another person :
- Installation of any device; or
- Construction or adaptation of the fabric of any building,
Voyeurism and related offences provisions state that 100 penalty units or imprisonment for 2 years, or both applies to this offence.
Summary Offence
An offence against this section is a summary offence. This means that it is a less serious offence that the local court typically deals with rather than a higher court.
Alternative Verdict
If, during the trial of a person charged with an offence against section 91J, 91K, or 91L, the trier of fact (the judge or jury) is not convinced that the offence is proven but is convinced that the person has committed an offence against section 91M, the trier of fact may acquit the person of the original offence and find them guilty of an offence against section 91M. The person will then be punished accordingly.
Seeking Legal Help About Voyeurism and Related Offences
Victims may consider pursuing legal action against the perpetrator. This could involve filing a civil lawsuit for damages or seeking a restraining order to protect themselves from further harm. Consulting with an attorney can help victims understand their legal options and make informed decisions.
JB Solicitors has criminal lawyers who can help with sexual offence matters and help victims get the justice they deserve. Our team can help with investigation procedures and gather evidence if matters escalate to court.
Contact us today for more information about sexual offence matters.
