Clause 120

Any person (A) shall be guilty of an offence who —

intentionally observes another person (B) doing a private act without B’s consent; and

knows or has reason to believe that B does not consent to being observed.(2) Any person (A) shall be guilty of an offence who —

operates equipment with the intention of enabling A or another person to observe a third person (B) doing a private act without B’s consent; and

knows or has reason to believe that B (whether B’s private act was recorded or not) does not consent to A operating equipment with that intention.(3) Any person (A) shall be guilty of an offence who —

intentionally or knowingly records another person (B) doing a private act without B’s consent; and

knows or has reason to believe that B does not consent to A recording the act with that intention.(4) Any person (A) shall be guilty of an offence who —

operates equipment without another person’s (B) consent with the intention of enabling A or another person (C) to observe B’s genitals, breasts if B is female, or buttocks (whether exposed or covered) in circumstances where the genitals, breasts, buttocks or underwear would not otherwise be visible; and

knows or has reason to believe that B (whether B’s image was recorded or not) does not consent to A operating the equipment with that intention.(5) Any person (A) shall be guilty of an offence who —

intentionally or knowingly records without another person’s (B) consent an image of B’s genitals, breasts if B is female, or buttocks (whether exposed or covered), in circumstances where the genitals, breasts, buttocks or underwear would not otherwise be visible; and

knows or has reason to believe that B does not consent to A’s recording the image with that intention.(6) Any person (A) who installs equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling A or another person to commit an offence under subsection (1), (2), (3), (4) or (5) shall be guilty of an offence.(7) Subject to subsection (8), a person who is guilty of an offence under this section shall on conviction be punished with imprisonment for a term which may extend to 2 years, or with fine, or with caning, or with any combination of such punishments.(8) A person who commits an offence under this section against a person who is below 14 years of age shall on conviction be punished with imprisonment for a term which may extend to 2 years and shall also be liable to fine or to caning.(9) In any proceedings for an offence under this section, where a person (A) has made a recording of another person (B) doing a private act or of B’s genitals, breasts if B is female, or buttocks (whether exposed or covered), in circumstances where the genitals, breasts or buttocks would not otherwise be visible, it is presumed until the contrary is proved that B did not consent to A making the recording.Distribution of voyeuristic image or recording377BC.—

Any person (A) shall be guilty of an offence who —

intentionally or knowingly distributes an image or recording of another person (B) without B’s consent to the distribution;

knowing or having reason to believe that the image or recording was obtained through the commission of an offence under section 377BB; and

knows or has reason to believe that B does not consent to the distribution.(2) Any person (A) shall be guilty of an offence who —

intentionally or knowingly has in his possession an image or recording of another person (B) for the purpose of distribution without B’s consent to the distribution;

knowing or having reason to believe that the image or recording was obtained through the commission of an offence under section 377BB; and

knows or has reason to believe that B does not consent to the distribution.(3) Subject to subsection (4), a person who is guilty of an offence under subsection (1) or (2) shall on conviction be punished with imprisonment for a term which may extend to 5 years, or with fine, or with caning, or any combination of such punishments.(4) Where the image or recording in subsection (1) or (2) is of a person below 14 years of age, a person who is guilty of an offence under subsection (1) or (2) shall on conviction be punished with imprisonment for a term which may extend to 5 years, and shall also be liable to fine or to caning.Possession of or gaining access to voyeuristic or intimate image or recording377BD.—

Any person shall be guilty of an offence who has in his possession or has gained access to an image or recording of another person and —

knows or has reason to believe that the image or recording was obtained through the commission of an offence under section 377BB; or

knows or has reason to believe that —

the image or recording is an intimate image or recording as defined in section 377BE(5);

the possession of or access to the image or recording was without the consent of the person depicted in the image or recording; and

the possession of or access to the image or recording will or is likely to cause humiliation, alarm or distress to the person depicted in the image or recording.(2) Subject to subsection (3), a person who is guilty of an offence under this section shall on conviction be punished with imprisonment for a term which may extend to 2 years, or with fine, or with both.(3) Where the image or recording mentioned in subsection (1)(a) is of a person below 14 years of age, a person who is guilty of an offence under this section shall on conviction be punished with imprisonment for a term which may extend to 2 years, and shall also be liable to fine or to caning.(4) For the purposes of subsection (1) —

a person has in his possession an image or recording of another person that is in electronic form if he controls access to the electronic image or recording, whether or not he has physical possession of the electronic image or recording; and

the ways in which a person gains access to an image or recording may include —

viewing or displaying it by an electronic medium or any other output of the image by an electronic medium; or

communicating, sending, supplying or transmitting the image to himself or herself.Distributing or threatening to distribute intimate image or recording377BE.—

Any person (A) shall be guilty of an offence who —

intentionally or knowingly distributes an intimate image or recording of another person (B);

without B’s consent to the distribution; and

knows or has reason to believe that the distribution will or is likely to cause B humiliation, alarm or distress.(2) Any person (A) shall be guilty of an offence who —

knowingly threatens the distribution of an intimate image or recording of another person (B);

without B’s consent to the distribution; and

knows or has reason to believe that the threat will or is likely to cause B humiliation, alarm or distress.(3) Subject to subsection (4), a person who is guilty of an offence under subsection (1) or (2) shall on conviction be punished with imprisonment for a term which may extend to 5 years, or with fine, or with caning, or with any combination of such punishments.(4) A person who commits an offence under subsection (1) or (2) against a person (B) who is below 14 years of age shall on conviction be punished with imprisonment for a term which may extend to 5 years and shall also be liable to fine or to caning.(5) In this section, “intimate image or recording”, in relation to a person (B) —

means an image or recording —

of B’s genital or anal region, whether bare or covered by underwear;

of B’s breasts if B is female, whether bare or covered by underwear; or

of B doing a private act; and

includes an image or recording, in any form, that has been altered to appear to show any of the things mentioned in paragraph (a) but excludes an image so altered that no reasonable person would believe that it depicts B.Illustrations(a) A copies, crops, and pastes an image of B’s face onto the image of a body of a person who is engaging in a sexual act. This image has been altered to appear to show that B actually engaged in a sexual act. This is an intimate image.(b) A pastes an image of B’s face on a cartoon depicting B performing a sexual act on C. No reasonable person would believe that B was performing the sexual act depicted on C. This is not an intimate image.Sexual exposure377BF.—

Any person (A) shall be guilty of an offence who —

for the purpose of obtaining sexual gratification or of causing another person (B) humiliation, alarm or distress, intentionally exposes A’s genitals;

intends that B will see A’s genitals; and

does so without B’s consent.(2) Any person (A) shall be guilty of an offence who —

for the purpose of obtaining sexual gratification or of causing another person (B) humiliation, alarm or distress, intentionally distributes to B an image of A’s or any other person’s genitals;

intends that B will see A’s or the other person’s genitals; and

does so without B’s consent.(3) Subject to subsection (4), a person who is guilty of an offence under subsection (1) or (2) shall on conviction be punished with imprisonment for a term which may extend to one year, or with fine, or with both.(4) A person who commits an offence under subsection (1) or (2) against a person (B) who is below 14 years of age shall on conviction be punished with imprisonment for a term which may extend to 2 years, and shall also be liable to fine or to caning.Using or involving child in production of child abuse material377BG.—

Any person shall be guilty of an offence who —

uses a person who is below 16 years of age for the production of material which he knows or has reason to believe is child abuse material;

causes or procures a person of that age to be so used; or

having the care or custody of a person of that age, consents to the person being so used.(2) A person who is guilty of an offence under subsection (1) shall on conviction be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.(3) For the purposes of subsection (1) —

a person may have the care of a person below 16 years of age without necessarily being entitled by law to have the custody of the child;

the ways in which material is produced may include —

filming, printing, photographing, recording, drawing or otherwise generating material;

altering or manipulating material; or

reproducing or copying material; and

the ways in which a person may be used in the production of material include inviting or encouraging the person to be involved, or offering the person to be involved, in the production of the material.Producing child abuse material377BH.—

Any person who intentionally produces child abuse material knowing or having reason to believe that the material is child abuse material shall be guilty of an offence.(2) A person who is guilty of an offence under subsection (1) shall on conviction be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.(3) For the purposes of subsection (1), the ways in which material is produced may include —

filming, printing, photographing, recording, writing, drawing or otherwise generating material;

altering or manipulating material; or

reproducing or copying material.Distributing or selling child abuse material377BI.—

Any person shall be guilty of an offence who —

distributes or sells or offers for sale child abuse material or has in the person’s possession child abuse material for the purpose of such distribution, sale or offer for sale; and

knows or has reason to believe that the material is child abuse material.(2) A person who is guilty of an offence under subsection (1) shall on conviction be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine or to caning.Advertising or seeking child abuse material377BJ.—

Any person shall be guilty of an offence who —

for the purposes of distributing or selling or offering for sale any child abuse material advertises the material; and

knows or has reason to believe that the material is child abuse material.(2) Any person shall be guilty of an offence who —

announces or otherwise makes known by any means any offer or purported offer to acquire, buy or gain access to any child abuse material; and

knows or has reason to believe that the material is child abuse material.(3) A person who is guilty of an offence under subsection (1) or (2) shall on conviction be punished with imprisonment for a term which may extend to 5 years, and shall also be liable to fine or to caning.(4) In subsection (1), “advertise”, in relation to child abuse material, includes —

exhibiting, displaying or supplying any advertising material relating to the material;

announcing by any means any offer to sell or distribute the material; or

distributing or circulating any advertisement relating to the material.Possession of or gaining access to child abuse material377BK.—

Any person shall be guilty of an offence who —

has in the person’s possession or has gained access to child abuse material; and

knows or has reason to believe that the material is child abuse material.(2) A person who is guilty of an offence under subsection (1) shall on conviction be punished with imprisonment for a term which may extend to 5 years, and shall also be liable to fine or to caning.(3) For the purposes of subsection (1) —

a person has in the person’s possession child abuse material that is electronic material if the person controls access to the material whether or not the person has physical possession of the electronic material; and

the ways in which a person gains access to material may include viewing material or displaying material by an electronic medium or any other output of the material by an electronic medium.IllustrationY has an online storage account for electronic material accessible with a username and password. Y has control of what is stored in the account and can upload to, copy from or delete material from the account. Y has an electronic folder in the account to which Y uploads and stores electronic child abuse material. Y has in his possession child abuse material.Exploitation by abusive material of minor of or above 16 but below 18 years of age377BL.—

This section applies only where a person (A) is in a relationship with another person (B) who is of or above 16 but below 18 years of age, that is exploitative of B.(2) A person (A) who uses, causes or procures B for the production of material which A knows or has reason to believe is abusive material shall be guilty of an offence and shall on conviction be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.(3) A person (A) who intentionally produces abusive material of B shall be guilty of an offence and shall on conviction be punished with imprisonment for a term which may extend to 10 years, and shall also be liable to fine or to caning.(4) A person (A) who distributes or sells or offers for sale abusive material of B or has in A’s possession abusive material of B for the purpose of such distribution, sale or offer for sale; and knowing or having reason to believe that the material is abusive material of B shall be guilty of an offence and shall on conviction be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine or to caning.(5) For the purposes of this section —

the ways in which material is produced may include —

filming, printing, photographing, recording, writing, drawing or otherwise generating material;

altering or manipulating material; or

reproducing or copying material; and

the ways in which a person may be used in the production of material include inviting or encouraging the person to be involved, or offering the person to be involved, in the production of the material.(6) In this section, “abusive material”, in relation to B, means material that depicts —

an image of B —

as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual);

as a victim of sexual abuse;

engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or

in the presence of another person who is engaged in, or apparently engaged in a sexual pose or sexual activity;

the genital or anal region of B in circumstances (whether or not apparent from the depiction) which reasonable persons would regard as being offensive; or

the breasts of B if B is female, in circumstances (whether or not apparent from the depiction) which reasonable persons would regard as being offensive.Defences to offences relating to intimate image or recording and voyeurism377BM.—

It is a defence to a charge for an offence under section 377BD of having possession of or gained access to an image or a recording obtained through the commission of an offence under section 377BB or an intimate image or recording mentioned in section 377BD(1)(b) for the accused person to prove that the accused person —

did not intentionally come into possession of or gain access to the image or recording; and

on becoming aware of having come into possession of or gaining access to the image or recording, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possession of or access to the image or recording.(2) It is a defence to a charge for an offence under section 377BB, 377BC, 377BD or 377BE(1) if —

the act that is alleged to constitute the offence was done for any of the following purposes without malice and with reasonable cause:

the prevention, detection, investigation or punishment of any offence;

the conduct of contemplated or pending proceedings in any court or tribunal or to obtain evidence for the purpose of contemplating such proceedings;

safety or national security; and

the image or recording (if any) obtained through the commission of an offence under section 377BB or the intimate image or recording (if any) mentioned in section 377BD(1)(b) or 377BE(5) was not kept for a period longer than what was reasonably necessary or required for the purposes mentioned in paragraph (a).Illustrations(a) A, a caregiver is concerned that B, an elderly person has been in the toilet for an unusually long period of time. Despite A knocking several times, there is no response from B. As A is concerned for B’s safety, A forcefully opens the toilet door to find B in a state of undress. A has committed no offence as the act was done for the purpose of ensuring B’s safety.(b) A notices that a stranger is using a mobile phone taking an upskirt photograph of a woman in the mall. A confronts the stranger who flees and drops his mobile phone. A keeps the mobile phone with the upskirt photograph with the intention of reporting the offence to the police. A hands over the phone to the police when he makes the police report. A has committed no offence as the act of possession of the upskirt photograph was done for the purpose of assisting the detection or investigation of the offence.Defences to child abuse material offences377BN.—

It is a defence to a charge for an offence of having possession of or gaining access to child abuse material under section 377BK for the accused person to prove that the accused person —

did not intentionally come into possession of or gain access to child abuse material; and

on becoming aware of having come into possession of or gaining access to child abuse material, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possession of or access to the material.(2) It is a defence to a charge for an offence under sections 377BH to 377BK if —

the act that is alleged to constitute the offence was done for any of the following purposes without malice and with reasonable cause:

the prevention, detection, investigation or punishment of any offence;

the conduct of contemplated or pending proceedings in any court or tribunal or to obtain evidence for the purpose of contemplating such proceedings;

safety or national security; and

the child abuse material or the abusive material, as the case may be, was not kept for a period longer than what was reasonably necessary or required for the purposes mentioned in paragraph (a).(3) It is a defence to a charge for an offence under sections 377BH to 377BK if the act that is alleged to constitute the offence —

has a legitimate purpose related to science, medicine, education or art; and

did not pose an undue risk of harm to any person below 16 years of age.Explanation.—An act has a legitimate purpose related to art which reasonable persons would regard as art.Illustrations(a) A university researcher has child abuse material in his possession for the purposes of studying the psychological effects of exposure to such material. The researcher’s possession of the child abuse material has a legitimate purpose.(b) A is a photo-journalist in a war zone. A takes a photo of a child victim of torture and submits this together with an article on the plight of such children to a news organisation for publication. The taking and sending of the photo has a legitimate purpose.(4) It is a defence to a charge for an offence under sections 377BH to 377BK if —

the accused person (A) is below 16 years of age; and

the child abuse material that is alleged to constitute the offence is an image of A alone.IllustrationA is 15 years old and takes a photo of herself alone posing in the nude. A stores the photo in her mobile phone. A has not committed the offence of producing or possessing child abuse material.(5) To avoid doubt, it is not a defence to a charge for an offence relating to child abuse material under sections 377BG to 377BL that, at the time of the conduct constituting the offence, the accused was under a mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as being, in the circumstances, offensive.(6) It is a defence to a charge for the following offences in circumstances where the offender (A) and the person below 16 years of age (B) are married and subject to the following respective conditions:

an offence under section 377BG(1) or 377BH(1) if the child abuse material —

involves only A and B in its production;

depicts B only, A and B only, or A only if A is below 16 years of age; and

was produced with B’s consent;

an offence under section 377BI if the distribution of the child abuse material —

occurs between A and B only;

involves material depicting B only, A and B only, or A only if A is below 16 years of age; and

was distributed with B’s consent;

an offence under section 377BJ(2) if the offer to acquire, buy, or gain access to the child abuse material —

occurs between A and B only; and

involves material depicting B only, A and B only, or A only if A is below 16 years of age;

an offence under section 377BK(1) if the possession of the child abuse material was with B’s consent and the material depicts B only, A and B only, or A only if A is below 16 years of age.”.