How to Defend Allegations of Publishing an Intimate Image Without Consent
Since 2015, publishing an intimate image of someone else without their permission is a crime in Canada. Section 162.1 of the Criminal Code captures all ways in which intimate images may be shared, including through physical delivery, social networking, email, or other means by publishing, distributing, transmitting, selling, making available or advertising an intimate image of another person knowing that the person depicted in the image did not give their consent to that conduct.
Allegations of publishing intimate images can have serious consequences, including criminal charges and the possibility of imprisonment. If you or someone you know is facing an allegation of publishing an intimate image, it is important to understand the legal issues involved and the potential defenses that may be available.
The Criminal Code of Canada defines the offense of publishing an intimate image in section 162.1, which states that anyone who intentionally publishes an intimate image of another person without their consent can be charged with an offense. An intimate image is defined as any visual recording of a person who is nude, partially nude, or engaged in sexual activity, where the person depicted had a reasonable expectation of privacy at the time the image was taken.
Our lawyers have defended allegations of publishing or distributing an intimate image in all corners of the province and often appear in courts across the GTA in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.
Frequently Asked Questions about Publishing An Intimate Image Without Consent:
An “intimate image” does not include photos that are simply embarrassing or unflattering. The term “intimate images” is intended to refer to images that relate to the core of a person’s privacy interest. These images often depict explicit sexual activity or nudity or partial nudity that is captured on film or video consensually. An “intimate image” is defined as a visual recording of a person made by any means including a photographic, film or video recording, in which the person engaged in any of the following situations:
- the person is nude
- the person is exposing their genital organs, anal region or breasts
- the person is engaged in explicit sexual activity
In cases where the intimate image depicts a person under the age of 18 engaged in explicit sexual activity or the dominant purpose of the recording is the depiction for a sexual purpose of that person’s sexual organs or anal region, the image constitutes child pornography and is captured by the Criminal Code of Canada‘s child pornography provisions found in section 163.1.
At the time of the recording, the person being recorded must be in circumstances that gave rise to a reasonable expectation of privacy before the person charged with publishing the image can be convicted of the crime.
If you are facing an allegation of publishing an intimate image, there are several potential defenses that may be available. One possible defence is that you did not publish the image intentionally. If you can demonstrate that you did not intend to publish the image, you may be able to avoid a conviction under the Criminal Code.
Another possible defence is that you had the consent of the person depicted in the image. If the person in the image gave you explicit consent to publish the image, you may be able to avoid a conviction under the Criminal Code. However, it is important to note that consent must be freely given and cannot be obtained through coercion or deception.
A third possible defence is that the image was not intimate or private in nature. If the image in question does not meet the legal definition of an intimate image, you may be able to avoid a conviction under the Criminal Code.
Another fourth possible defence is that the conduct that forms the subject matter of the charge serves the public good and does not extend beyond what serves the public good.
A person charged can also raise the issue that the image was inadvertently shared as opposed to intentionally published or dispute that they sent the intimate photo.
It is important to note that the burden of proof is on the prosecution to prove that you intentionally published an intimate image without the consent of the person depicted. If the prosecution cannot prove these elements beyond a reasonable doubt, you may be able to successfully defend against the allegation.
In addition to these potential defenses, it is important to seek the advice of a qualified legal professional if you are facing an allegation of publishing an intimate image. A criminal defense lawyer can review the specific details of your case and provide guidance on the best course of action to take.
What types of sentences are available for publishing an intimate image without consent?
A conviction for publishing an intimate image in Canada can result in serious consequences. The Criminal Code of Canada classifies the offence as a hybrid offence, which means that it can be prosecuted as either an indictable offense or a summary offence, depending on the severity of the offence and the discretion of the prosecutor.
If convicted on indictment, the maximum penalty is five years in prison. If prosecuted by summary conviction, the maximum penalty is 2 years in jail, a fine of up to $5,000, or both.
In addition to the possibility of imprisonment and fines, a conviction for publishing an intimate image can also have a significant impact on a person’s reputation, relationships, and future employment opportunities.
A conviction may also result in a criminal record, which can have long-lasting consequences, such as difficulty finding employment, travel restrictions, and loss of certain rights and privileges.
It is important to note that the consequences of a conviction for publishing an intimate image can vary depending on the specific circumstances of the case, the nature of the offence, and other factors. It is always advisable to seek the advice of a qualified legal professional if facing allegations of this nature.
In addition to any other punishment or condition that may be imposed by the court, someone convicted of publishing an intimate image may also be subject to an order prohibiting them from using the Internet or other digital network for life.
Will a person convicted of publishing an intimate image without consent be placed on a sexual offender registry?
Publishing an intimate image without consent is not one of the many sexual offences that can trigger a sexual offender registry order.
In conclusion, allegations of publishing an intimate image can have serious consequences, but there are several potential defences that may be available. If you or someone you know is facing an allegation of this nature, it is important to understand the legal issues involved and seek the advice of a qualified legal professional. With the right approach and a strong defence, it is possible to successfully defend against these allegations and protect your rights under the law.
If you require further advice on this issue, please feel free to contact Daniel Brown Law at (416) 297-7200 to book a consultation at either of our Toronto or Vaughan locations.