Introduction

Our privacy is sacred — it’s where we are our most vulnerable and where we often feel safest. Violating this privacy for sexual gratifications is more than just being a “peeping Tom” or doing something weird – it is committing a serious criminal act. This offence is called voyeurism in New South Wales, defined under the Crimes Act 1900 (NSW). It involves observing or recording individuals without their consent, often in private settings, for sexual gratification. This offence is a significant breach of personal privacy and can lead to severe legal consequences, including imprisonment and fines.

This article provides a comprehensive legal guide to understanding voyeurism in NSW. It covers the definitions of voyeurism, the specific offences outlined in Division 15B of the Crimes Act 1900 (NSW), and the penalties associated with these offences. The guide also explores aggravated offences, such as those involving minors or modified buildings, and discusses the legal implications of installing devices to facilitate voyeuristic acts. By reading this guide, you will gain a clear understanding of the legal framework surrounding voyeurism and the importance of seeking legal advice if charged with such an offence.

Understanding the Nature of Voyeurism & Its Definition in NSW

Defining Voyeurism

Under the Crimes Act 1900 (NSW), voyeurism in New South Wales is a serious criminal offence. It involves observing or filming individuals without their consent, typically in private settings where there is an expectation of privacy. Such conduct represents a significant breach of personal privacy and often includes a sexual component that can cause emotional and psychological harm to victims.

Legally, voyeurism is defined as the act of observing or filming another person engaged in a private act without their consent, often for sexual gratification. The key elements that define voyeurism include:

• Intentional Act: The observation or filming must be deliberate and not accidental.
• Lack of Consent: The person being observed or filmed must not have given their consent.
• Expectation of Privacy: The act must occur in a situation where the person would reasonably expect privacy.
• Sexual Motivation: The primary purpose is often sexual arousal or gratification.

For example, installing a hidden camera in a public restroom or secretly filming someone undressing without their knowledge would both constitute voyeuristic behaviour.

Private Acts and Consent Requirements

A private act is any activity where a person would reasonably expect privacy. This includes being in a state of undress, using the toilet, showering, bathing, or engaging in sexual activities.

Consent is the critical factor in determining whether an offence has occurred. In this context, valid consent must be:

• Freely Given: Consent must be voluntary and without coercion.
• Informed: The person must be aware of the observation or filming.
• Specific: Consent to one activity does not imply consent to others.
• Revocable: Consent can be withdrawn at any time.

If a person is unaware of being observed or filmed, or if they have not given explicit consent, the act constitutes a violation of their privacy and may be classified as voyeurism.

Offences Under the Crimes Act 1900 in NSW

Voyeurism Offence Specifics

Under the Crimes Act 1900 (NSW), specific offences related to voyeurism detail various forms of conduct that infringe on personal privacy and are treated seriously, reflecting the law’s focus on preserving individuals’ privacy and dignity.

Voyeurism is defined as the act of observing another person engaged in a private act without their consent, typically for sexual gratification. A private act includes activities such as undressing, using the toilet, showering, or engaging in sexual activities—situations where a reasonable person would expect privacy.

Key elements of the offence:

• The observation must be intentional and without consent.
• The offender must know that the person being observed does not consent.

Penalties:

• General offence: 100 penalty units or two years’ imprisonment, or both.
• Aggravated offence (e.g. involving a child under 16 or modifying a building to facilitate the act): up to five years’ imprisonment.

Related Offences Involving Filming Private Acts

The Crimes Act also criminalises filming a person engaged in a private act without consent, including actions like upskirting or recording someone in private areas such as bathrooms or changing rooms.

Penalties for this offence mirror those for voyeurism:

• Up to 100 penalty units or two years’ imprisonment for a general offence.
• Up to five years’ imprisonment for aggravated cases.

Additionally, installing a device to facilitate observation or filming is an offence—even if no actual filming occurs. This underscores the seriousness with which NSW law treats any intentional invasion of privacy for sexual gratification.

These related offences highlight the legal system’s commitment to safeguarding personal privacy and the potential severe consequences for those who violate it.

Aggravated Voyeurism & Legal Consequences

Aggravating Factors in Voyeurism Offences

Aggravated voyeurism occurs under specific circumstances that intensify the crime’s severity. These key factors include:

• Involvement of a child under 16: When the person being observed or filmed is a minor under the age of 16, the offence is classified as aggravated.
• Modification of a building: Constructing or adapting a property—such as installing hidden observation points—to facilitate the offence.

Furthermore, the presence of either factor directly leads to harsher legal penalties.

Penalties for Aggravated Voyeurism Offences

The legal consequences for aggravated voyeurism are severe under the Crimes Act 1900 (NSW). Specifically:

• The maximum penalty for an aggravated voyeurism offence is 5 years’ imprisonment.
• By contrast, a standard voyeurism offence carries a maximum penalty of 2 years’ imprisonment.

This marked increase in penalties reflects the law’s recognition of the heightened seriousness when minors are involved or structural modifications enable the crime.

Offence of Installing a Device to Facilitate Observation or Filming

Device Installation Under Section 91M

Under Section 91M of the Crimes Act 1900 (NSW), it is an offence to install or adapt a device with the intention of facilitating the observation or filming of another person engaged in a private act. This is classified as a summary offence, carrying a maximum penalty of 100 penalty units, two years’ imprisonment, or both.

Specifically, the key aspects of this offence include:

• Installation or adaptation of a device: For example, placing a hidden camera, modifying a building to create observation points, or using any mechanism that enables voyeuristic acts.
• Intent to facilitate observation or filming: The primary purpose of the installation or adaptation must be to observe or film someone without their consent.
• Examples of devices: Hidden cameras, peepholes, or any other mechanism designed to secretly record or observe individuals in private settings.

Legal Implications Without Actual Filming

The offence is complete upon the installation or adaptation of the device, regardless of whether any actual filming or observation occurs. Consequently, even if no images or videos are captured, setting up the device with intent to commit voyeurism suffices to constitute the offence.

Key considerations include:

• Intent as a critical element: The prosecution must prove that the device was installed or adapted with the intention of observing or filming someone in a private act without their consent.
• No requirement for actual filming: The absence of recorded material does not negate the offence, since the preparatory act itself is criminalised.
• Penalties remain severe: Even without actual filming, the penalties reflect the seriousness with which NSW law treats invasion of privacy.

Ultimately, this offence underscores the legal system’s commitment to protecting personal privacy and preventing the misuse of technology for voyeuristic purposes.

Conclusion

Voyeurism in New South Wales is a serious criminal offence that involves observing or filming individuals without their consent, often for sexual gratification. The Crimes Act 1900 (NSW) outlines specific offences, including voyeurism, filming private acts, and installing devices to facilitate such acts. Penalties range from fines to imprisonment, with aggravated cases carrying harsher sentences, especially when involving minors or structural modifications to buildings.

Understanding the legal implications of voyeurism is crucial for anyone facing charges. If you or someone you know is charged with a voyeurism offence, it is essential to seek expert legal advice. Contact Daoud Legal, a trusted criminal law firm in Sydney, for specialised guidance and support. Our experienced lawyers can help navigate the complexities of these charges and ensure your rights are protected.

Frequently Asked Questions